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US-CHINA LAW REVIEW

VOL. 8 JULY 2011 NO. 7

617

ARTICLES

REFORMS OF PUBLIC ADMINISTRATION OFLATVIAWHERE NEXT?

J nis Na is ionis

& Una Skrasti

After regaining independence in 1990 Latvia inherited the Soviet

public administration system from the Soviet regime. Twenty years have

gone by and the state mechanism has changed and along with it public

administration as the social (political) goals foreseen in the laws constantly

change and therefore public administration, which is a tool for achieving

these goals must also change. It means the public administrations

institutional structure should be constantly established, liquidated and

reorganised and existing procedures should be developed anew or amended.Consequently public administration has to be constantly reformed. This

paper reviews the problems faced over the past few years during reforms of

public administration in Latvia as it is shown by practice that the

understanding of the reforms and the way in which it has been attempted to

implement them have up until now been most often incorrect.

I NTRODUCTION............................................................................................ 618I. STRUCTURAL R EFORMS ........................................................................... 619II. O N LATVIAS STRATEGIC DEVELOPMENT PLAN ..................................... 625III. PROCEDURE FOR ORGANIZATION OF STRUCTURES OF PUBLIC

ADMINISTRATION I NSTITUTIONS ........................................................... 632IV. STRUCTURAL CHANGES IN PUBLIC ADMINISTRATION........................... 636

A.Reorganization of State Chancellery .............................................. 637 B.Reorganization of Ministries .......................................................... 638C.Threats of Mergers ......................................................................... 641

CONCLUSIONS ............................................................................................. 642 Professor of Law, School of Business Administration Turiba; research fields: Administrative Lawand Administrative Procedure. School of Business Administration Turiba; research fields: Administrative Law.



618 US-CHINA LAW REVIEW Vol. 8:617

I NTRODUCTION

After regaining independence in 1990 Latvia inherited the Soviet public administration system from the Soviet regime. Twenty years havegone by and the state mechanism has changed and along with it publicadministration has changed as well. The society expected the changes in public administration to be effective and hoped to achieve a qualitatively better situation. However their hopes failed. The society understands thatsomething is wrong with public administration and feels that it is a problem. The European Union views this problem as Latvias

administrative weakness.Public administration is a complex, in fact the most complex socialmechanism. It is the most complex of three state power branches: legislative,executive and judiciary. Administration is subject to the definite goals thatare determined by the legislative body. As the social (political) goalsdetermined in the laws constantly change, public administration which is atool for achieving the goals must also change. It means the publicadministrations institutional structure should be constantly established,liquidated and reorganised and existing procedures should be developed

anew or amended as necessary for the achievement of goals set byconstantly changing laws. Therefore public administration needs to beconstantly reformed. Mechanisms should be created to constantly check,evaluate and reform public administration. 1 The key word in publicadministration is efficiency which until now has only been realised in paper despite Latvia having all the basic principles of the rule of law.

From the financial perspective it should be taken into account that it isrelatively more expensive for smaller states to maintain a publicadministration structure than for larger states. Regardless of the size of thestate, each state has to adopt more or less the same number of laws and lawsof equal quality as well as implement them. The State administrationstructure Law came into force in Latvia in 2003.2 A possible better publicadministration structure was created subject to the law and its basic principles of operation were determined. One of the main goals of the Stateadministration structure Law was the provision of effective publicadministration and this term has been mentioned more than 10 times in the

1 Egils Levits, Valts prvalde ir past v gi jreform [ Public Administration Should Be Constantly

Reformed ], http://www.politika.lv/temas/7356 (referred on June 14, 2011).2 Valsts prvaldes iek rtas likums, Latvijas Republikas likums [State Administration Structure Law.LAW OF THE R EPUBLIC OF LATVIA], Latvijas Vstnesis , June 21, 2002. No. 94, with amendments May13, 2010, Latvijas Vstnesis May 26, 2010, No. 82.



2011 REFORMS OF PUBLIC ADMINISTRATION 619

law. The concept of the Law points out: This concept in accordance with

the law has to create a tool for the state to reduce deficiencies inadministration and to underpin and consolidate within the framework of the constitution wherewith the state administration operates in a democraticstate. Eight years have lapsed and during this period the reform of the public administration has been discussed several times. In particular thesediscussions have been more vociferous in times of economic crisis. It hasmade one ponder and discuss, however often these discussions have been ata primitive level and just restricted to issues on the liquidation3 of stateinstitutions referring to them as structural reforms.

Part I explains what kind and in what sectors are carried out structuralreforms and come to conclusion that the reforms continue to be budgetcutting.

Part II investigates that structural reforms ought to be consistentlyimplemented, but the next stage ought to move from the budget cutting tothe government function evaluation included the full audit of administrativefunctions. Part III examines building of the system of administrativeauthorities and a separate administrative body structure in accordance withmanagement theory and law regulations. Part IV shows research devoted to

structural reforms in State chancellery and Ministry for regionaldevelopment and municipal affairs (RAPLM), which is smaller part of structural reforms in our country.

I. STRUCTURAL R EFORMS

Over the recent years the concept of structural reforms has been mainlyviewed upon in the context of attempts to provide for a sustainable state budget. Although one has become weary of this term it still refers tosubstantial work towards the improvement of the welfare of the state and

hence it is important to understand what is meant by structural reforms andhow important it is to Latvia at present. It seems that people are mostlyconfused because the term is mentioned most frequently in the mass mediain connection with cutting the state budget and therefore giving it thesame meaning. It is true that the first step on the road to efficientadministration is the cutting down on unnecessary expenditures or expensesthat the state or for example enterprises could simply not afford.Unfortunately austerity measures do not always lead to sustainable well-

3 Gatis Litvins, Egils Levits kritiski v rt valsts prvaldes reformas[ Egils Levits Critically Evaluates

State Administration Reforms], JURISTA VRDS No.19 (614) May 11, 2010, http://www.juristavards.lv/index.php?menu=DOC&id=209384 (referred on June 7, 2011).




providing these services may face some inconveniences due to the reduction

of resources allocated to them.

The aim of the structural reforms is to work more efficiently and therefore live better on the long term. Therefore it is amisconception that structural reforms are carried out under the instructionsof foreign lenders, whose support and advice to the state is significant toovercome the financial difficulties when expenditures exceed income to alarge extent and a financer or lender is necessary. 6

Reforms are carried out if there are reasons to believe that publicadministration resources are not used efficiently, do not provide theexpected results or do not reach a reasonable efficiency levelresults against

investment. For example the international comparison of sector policyresults could indicate the possible efficient use of resources.

Of course it would be wonderful if the government were orientedtowards sustainability of public administration during the prosperous yearswhen there is availability of resources and time and the opportunity toanalyse the administration and sector policy structures, compare the policyresults with examples of other states, evaluate the effectiveness of resourcesinvested and make conclusions or the necessary changes. Consequentlyunder the favourable macroeconomic situation the structural reform process

would have less number of those affected. In practice however it isobviously not easily manageable as the government would find it difficult to justify, for example, the quantitative reduction in resources for the educationsystem or reduction in number of officials when the income from taxesexceeds all forecasts (which under present circumstances seems to be themost successful policy result), and therefore allow or force it to move in asimilar direction further. Therefore structural reforms unfortunately oftenare carried out in times of crisis when the funds for maintaining aninefficient public administration are not sufficient enough.7

Over recent years in Latvian practice while balancing the income andexpenditure in the budget the Ministry of Finance has often had to demand acertain amount of savings from the different sectoral ministries. Based onthis demand, the task of the sectoral ministries was to find areas of savingsat the same time aiming for structural changes that would in the futureensure the efficient provision of public services. Of course the sectoralministries are better aware of the situations in their sectors than the FinanceMinistry but it does not mean that they could definitely be able to developand carry out long term reforms as the structure of the ministries wereformed for entirely different reasonsto manage the existing situation.

6 Supra note 4.7 Ibid.




Therefore it should be concluded that the reform process in Latvia was not

comprehensive, often reforms being carried out in the short term aimed atnecessary savings in the budget and the implementation of the reforms wereentrusted to the ministries to reform themselves.8

Which sectors in Latvia require reforms?

Which indicators in Latvia point out the structural problems,ineffectiveness and the necessity for reforms? First of all the increase in budget expenditure which went hand in hand with over 10% growth that ischaracteristic of an overheated economy without testifying to anyimprovement in effectiveness indicated the possible emergence of structural

problems in the future. The balancing of expenditure to in fact anunexpected increase in income did not indicate observance of any fiscaldiscipline and such a policy obviously was not sustainable. Reviewing the policies of individual sectors, of course specialists would know where tofind the ineffectiveness better, attention must be paid to at least a few issuesin the international context. One such issue, e.g., is related to the widelyspread opinion in Latvia that in accordance with certain indicators we are atthe top end and that the average education level is high mainly based onthe student ratio to number of inhabitants. However analysing deeper it can

be seen that preening oneself in terms of quantity is not justified.

9

Yes, westudy more but are we better? There should be results that indicatecompetitiveness of higher education in the labour market, ability of scientists to carry out research that are published in internationallyrecognised scientific journals. The number of alumni is not a qualityindicator and furthermore according to the demographic situation it isforecasted that increasingly fewer number of students will be using thehigher education infrastructure in the years to come.10

The same demographics forecasted that the number of secondaryschool students would decrease by one third since 2003, however during the pre crisis economic period the increase in expenditure for the educationsector was one of the most rapid in Europe. At present even taking intoaccount the reforms started in secondary education the ratio of students per teacher is considerably lower than it was 7-8 years ago. Unfortunately thewide network of schools and relatively high number of teachers that wasachieved due to lower costs by international comparison (i.e., teachers

8 Ibid .9 Vair k skat t, O egs Krasnopjorovs: K kvantit ti prv rst kvalit t [ How to Transforme Quantityinto Quality?], http://www.makroekonomika.lv/izglitiba-latvija-ka-kvantitati-parverst-kvalitate(referred on June 11, 2011).10 Supra note 4.




austerity measures and now the second stage has started where the

implementation of reforms will further the competitiveness of the state,economic growth and effectiveness of public administration. The Reformmanagement group was approved in 2009 to ensure structural reforms in public administration, promote open budgeting, reduction of bureaucracyand economic stimulation as well as to ensure the participation of thesociety in budgeting, implementation of reforms and other significant statelevel decision making in the drafting of the bill On state budget for 2010.15

On the whole evaluating the functions of the state and the possible

rational and efficient use of state budget funds progress has been achieved inthe determination of reduction of resources based on the results of evaluation of functions and tasks in an attempt to discontinue the linear approach towards reduction of resources. Although an agreement has beenreached regarding the goalssmall and efficient administration, expansion of the internal and external market for the Latvian economy, promotion of employmentwork should be carried on regarding the clear definition of basic principles for further structural reforms, the active implementation of social security measures, measures included in the economic recovery plan

for promotion of entrepreneurship and attraction of investments, measuresto provide support for establishing micro enterprises and business, in depthevaluation of public administration functions by enhancing the evaluationmethodology and the introduction of the one stop agency principle for provision of services.16

As stated by the Prime Minister V. Dombrovskis, the ministries shalldraft their proposals in accordance with principles and directions of further structural reform agreed upon by the reform management group. These will be reviewed together with the social and cooperation partners of governmentand an agreement will be reached on the procedure and reportingmechanisms for the introduction of each individual reform measure.Ministers have to understand that there is no distinction between myministry and other ministries. This is the joint work of the government for

15 July 9, 2009. Ministru prezidenta r kojums Nr. 296 Par reformu vad bas grupu [Decree of the Prime Minister No. 296 On Reform Management Group] (LV, 107 (4093), July 9, 2009) [spk ar July 9, 2009].16 Papildus informciju par Reformu vad bas grupu skat t Valsts prvaldes reformu dienasgr mat,[Information on the Reform Steering Group, see Public Administration Reform Diary],

http://piedaliesreforma.blogspot.com/search/label/RVG (referred on June 11, 2011) un Reformuvad bas grupa: uzskt s reformas jturpina konsekventi realiz t [ Reform Management Group: The

Reforms Should Continue to Consistently Implement ], http://piedaliesreforma.blogspot.com/2009/10/reformu-vadibas-grupa-uzsaktas-reformas.html (viewed on June 11, 2011).




the future of the state and requires reforms in its broadest sense. The key

results of the structural reforms are measurable in terms of benefit to thesociety-provision of qualitative and accessible public services to theinhabitants by increasing the efficiency of public administration. The goal of the reforms is to achieve the efficient and qualitative performance of statefunctions with the existing resources. However structural reform is not amagical tool that would within a moment provide additional savings in the budget. Structural reforms are not exactly the same as budget consolidation.In other words the fruits of labour, how successfully the state reducesfunctions that are miscellaneous and achieves the efficient administration of

state resources will be reaped gradually. Work on the enhancement of administration of state assets-state enterprises and property-was commencedin 2010 defining the future model for administration of state enterprises thatinvolves the determination of operational aims of the enterprises andmonitoring the achievement of these aims, involvement of professionalmanagement, determination of transparent recruitment procedure for topmanagement and transparency in the choice of suppliers and cooperation partners. Serious work should be carried on regarding enhancement of statecompetitiveness: increasing productivity and ensuring the ever increasing

creation of added value in the economy based on the involvement of scienceand research in production as well as direct internal and externalinvestments in the state economy. Work has been started on the firstcomprehensive state competitiveness assessment, the results of which will be available in the first of the next year to successfully tackle thecompetitiveness issue. This assessment will form the basis for thedevelopment of a comprehensive state competitiveness monitoring system. 17

II. O N LATVIAS STRATEGIC DEVELOPMENT PLAN

The monitoring of the implementation of Latvias economicstabilisation and growth revival programme is carried out within theframework of Latvias strategic development plan for 2010-2013.18 Themain tasks carried out in the field of public administration reforms in 2010

17 Divi gadi vad b: ce uz Latvijas ilgtsp j gu izaugsmi! [Two Years in Power: Road to Latvias

Sustainable Growth], http://valdisdombrovskis.lv/divi-gadi-vadiba-cela-uz-latvijas-ilgtspejigu-izaugsmi/ (viewed on June 7, 2011) un http://www.diena.lv/sabiedriba/politika/dombrovskis-divi-

gadi-vadiba-cela-uz-latvijas-ilgtspejigu-izaugsmi-770720 (referred on June 7, 2011). 18 Ministru kabineta April 9, 2010 r kojums Nr.203 Par Latvijas Stratisk s att st bas plnu 2010-2013.gadam. [Cabinet of Ministers April 9, 2010 Order Nr.203 The Latvian Strategic Development Plan 2010 to 2013] http://www.likumi.lv/ doc.php?id=208079 (viewed on June 10, 2011).




are the assessment of state functions and expansion and strengthening of the

unified remuneration system.The administrative law functions can be divided as follows:The first administrative law function is to enforce the provisions of the

legal sources valid in the Republic of Latvia. The Europeanization of administrative law has developed comprehensively and there is no area of regulations that is not subject to regulation by European legal norms. Onlythose who know these laws can influence its contents. 19 The secondadministrative function is to manage, regulate relations for example betweenthe ministry and municipality (derived public person) or between two

municipalities (derived public persons). The third administrative lawfunction is to determine and regulate relations between publicadministration institutions and private persons or other participants of administrative law functions such as non governmental organisations.However attention should be paid to the fact that along with the regulativenature of the action administrative law management functions are alsodefined. Law is a tool for management. Law is a phenomenon to managethe actions of participants of administrative law relations. All state functionsare equally important and all the state functions are assigned to the public

administration for execution (implementation).

20

The state has basic functions that it has to fulfil. Otherwise there arisesthe question whether it is still a state. However the other functions can bediscussed and political decisions should be taken. If as a result of thediscussion the conclusion is that the state has to perform a certain functionalthough there is a lack of financial resources, the institution performing thefunction cannot be liquidated. When the economic situation improves it canstart performing the full range of functions. It is much more expensive anddifficult to create an institution and renew the human resources to performthese functions. Moreover in case of full liquidation there is a waste of civilservice resources and efficient civil servants are a state resource. Thereforeduring the transition period (economic crisis is a cyclic process) the

19 Paine F.J., Eiropas administrat vo ties bu ietekme uz dal bvalstu administrat vm ties bm. Likumsun Ties bas, 2003, apr lis Nr.4, Citts pc: J.Naisionis. Administrat vs ties bas .R ga: SIABiznesa augstskola Tur ba [Paine F.J., European Administrative Law Impacts On National

Administrative Law, LAW AND JUSTICE, 2003,apr lis No.4. Quoted from: J. NAISIONIS, A DMINISTRATIVE L AW , Riga: SIA Business Administration Turiba], 2009, 39. Lpp.20Jnis Naisionis, Administrat v s ties bas, R ga: SIA Biznesa augstskola Tur ba [J. NAISIONIS, A DMINISTRATIVE L AW , Riga: SIA Business Administration Turiba], 2009, 39-40 lpp.




The working group for assessment of functions prepared a draft

proposal for the optimisation of functions financed by the state budgetwhich as precisely stated foresees savings of 78.8 million Lats in the 2011 budget as a measure of consolidation. The working group forecastsadditional savings of 5 to 8 million LVL a year by implementing mediumterm measures. The assessment drafted is based on the optimisation of thosestate functions and services that pose minimum social or economic risks.Therefore the proposals include the reduction or suspension of functionsthat are performed in the most efficient manner but those that are not animportant priority in crisis situations. Assessing the reductions by functional

blocks, policy making and overall government office (Cabinet of Ministers,ministries, central ministerial offices) functions are to be reduced by 8.2%;social order, security and defence6%; planning of economic activities,support, subsidies, planning grants and support for regions9.1%; health block2.7%; culture, sport and recreation7.1%; education and science 2.3%; social security0.48% and public administration institution expenses 4.7%. The issues regarding usefulness of rent of premises for necessities of state institutions, optimisation of IT systems, the drawbacks regardingflexibility of the state administrative structure law in implementing the

reforms quickly and successfully etc. were elaborated during thediscussions.23 The recommendations of the Cabinet of Ministers No.2, Procedure for

creation of state administration structure 24 determine the tasks of supportfunctions that should be carried out to ensure the successful provision of basic functions. The support functions shall determine in accordance with job classification that one position can ensure the provision of severalsupport functions. The standardisation of processes furthers the provision of support functions and observes the principles of proportionality usingcomparative internationally used economic efficiency indicators asguidelines for direct state administrative operations. Applying theabovementioned economic efficiency indicators the specifics of operationsof state institutions should be taken into account: one specialist (workload)shall be responsible for 100 employees (workload); one payroll accountantshall be responsible for 200 employees (workload) or carry out at least 9500

23 Valsts prvaldes funkciju izv rt ana [ Evaluation of Public Administration Functions],http://www.mk.gov.lv/lv/vk/funkciju-audita-komisija/funkciju-izvertesana/ (referred on June 17,2011).24 Valsts prvaldes iest des strukt ras izveidoanas k rt ba, MINISTRU KABINETA IETEIKUMI Nr. 2,December 14, 2010 [The recommendations of the Cabinet of Ministers No 2nd December 14, 2010

Procedure for Creation of State Administration Structure],http://www.likumi.lv/doc.php?id=222935 (referred on June 7, 2011).




that. In a situation where budget funds are limited the problem is aggravated

further and efficient procurement policy in Latvia is becoming ever moretopical as it is a means of saving budget funds in particular in situationswhen the number of employees in public administration should be reducedand the best value for money should be provided.

The European Union and Latvia have concluded a memorandum of understanding,27 which by the way foresees the compulsory centralisation of municipality procurements, making it the duty of municipalities to plan their procurement policies in their municipalities defining procurements thatwould be made on a centralised basis and those that are eligible to be made

by the municipal institutions.

28

The reform of support functions of state organisations meanscombining the services or purchasing certain services from the private sector.For example research carried out in Great Britain shows that opencompetition in the provision of public services has resulted in savings to thetune of 20% for tax payers29 and similar results are shown by research inother countries. The possibility and necessity of assigning public functionsto the private sector should be considered in the process of structuralreforms itself wherein strategic analysis, project development and audit are

performed by experts and specialists in the field according to internationalexperience and not by civil servants who have other functions. 30 The Ministry of economics has carried out the centralisation of several

support functions at the ministerial level thereby providing accounting, personnel documentation and information technology functions for severalsubordinate institutions. Centralisation of audit functions was done at theMinistry of Interior. The Ministry of Education and Science provides personnel management functions also with regards to heads of institutionsas well as partially carries out procurement for subordinate institutions. 31 Further information on structural reform can be found in the informative

27 Eiropas Savien bas un Latvijas Republikas Sapraan s memorands, Sapraan s memoranda

treais papildin jums [Supplemental Memorandum of Understanding (Third addendum to theMemorandum of Understanding) Between The European Union and the Republic of Latvia]http://www.fm.gov.lv (referred on June 12, 2011).28 Una Skrastia, , International Scientific-PracticalConference Business, Studies and Me, auu koleda, February 24, 2011, Nav publicts.29 Understanding the Public Services Industry: How Big, How Good, Where Next?, A review by Dr.DeAnne Julius CBE, Department for Business Enterprise & Regulatory Reform, July 2008www.esternalizzazioni.it/public/.../Julius_Understanding_the_Public_Services_Industry_2008.pdf

(referred on June 11, 2011). 30 Supra note 4.31 Veikti btiski struktur lie prk rtojumi valsts prvald [Valsts kanceleja], June 3, 2011,http://www.mk.gov.lv/lv/aktuali/zinas/2011gads/06/030611-vk-03/ (referred on June 11, 2011).




report On structural reorganisation in public administration. 32

Auditing of several functions, drawing conclusions, involvingindependent experts and ensuring the discussion of results was carried outthroughout the year 2010. For example within the framework of the audit of functions in the field of supervision of education institutionsrecommendations were put forward that help decrease the scope of accreditation of standard programmes in general education and for professional education programmes that are supervised and waive thelicensing committee for tertiary education, decrease the amount and contentof statistical information required as well as prevent the overlapping of

control of education institutions at various administrative levels (Ministry of Education and Science, municipality, internal audit). With theimplementation of the recommendations of the audit of functions the timeresources spent by education institutions on licensing and accreditation will be reduced. 33

The audit of functions in the field of supervision of commercialenterprises put forward different recommendations for each of the analysedeconomic spheres starting from food production, construction to trade andcommon recommendations for the simplification of insolvency procedures.

The spheres where further research and analysis was necessary were alsoidentified, e.g. simplification of the document storage and archiving system, promotion of unified defining and structuring of services, simplification of applications, submission of complaints and enquiries and their review,determination of price lists for paid services, administration of licences for external trade, reorganisation of several sub branches in the constructionsector, specifying requirements for public debate, updating custom codes,notification of changes in records of commercial register, removal of product samples for testing as well as improvement of the administrative procedure. 34

The law on remuneration for officials and employees of state andmunicipal institutions came into force on January 1, 2010.35 The aim of this

32 Informat vais ziojums Par struktur lajiem prk rtojumiem valsts prvald

http://www.mk.gov.lv/lv/aktuali/zinas/2011gads/06/030611-vk-03/ (referred on June 11, 2011).33 Par Latvijas Strat isk s att st bas pl nu [Cabinet of Ministers April 9, 2010 Order Nr.203 The

Latvian Strategic Development Plan 2010 to 2013]. Latvijas Vstnesis January 28, 2011, 16 (4414)http://www.vestnesis.lv/body_print.php?id=225066 (referred on June 7, 2011).34 Ibid. 35 December 1, 2009 likums Valsts un pavald bu instit ciju amatpersonu un darbinieku atl dz baslikums [ Law on Remuneration of Officials and Employees of State and Self-Government

Authorities] (LV, 199 (4185), December 18, 2009) [st jas spk January 1, 2010],http://www.likumi.lv/doc.php?id= 202273&from=off ( referred on June 17, 2011).




law is to ensure equal conditions for determining the remuneration of

officials (employees) of state and municipal institutions. To ensure theextension and consolidation of the unified remuneration system the existing job catalogues have been appended including in it those employed inmunicipalities, courts, prosecutors office, state founded higher educationinstitutions and Finance and Securities trading committee. The jobcatalogues for state and municipal institutions have also been adopted by theforce of law so that they are binding upon these institutions even when theyare not a part of the executive body. The extension of the job classificationsystem and consequently the inclusion of the jobs in the unified

remuneration system is a significant step towards transparency andeffectiveness of remuneration in the public sector.36

III. PROCEDURE FOR ORGANIZATION OF STRUCTURES OF PUBLIC

ADMINISTRATION I NSTITUTIONS

The recommendations No.2 Procedure for organisation of structuresof public administration institutions was approved at the meeting of theCabinet of Ministers on December 14, 2010. The recommendationsdeveloped in accordance with the 4th clause of Article 17 of the Stateadministration structure law stipulate the procedure for organisation of structures of these institutions. The recommendations provide guidelines for optimal number of direct subordinates, heads and deputy heads of structuralunits, desired number of levels of structural units as well as define the basicand support functions of the institution. 37 The recommendations determinethe procedure for organisation of structures of public administrationinstitutions (hereinafter-institution) with the aim of achieving a unified andclear organisation of the institutions institutional structure, optimal planning of human resources (hereinafteremployees) and efficient and

effective use of state budget funds. The institutions structure is organised inaccordance with its goals, functions and tasks determined in the normativeenactments in order to achieve the goals effectively both economically andfunctionally as well as to ensure the qualitative provision of services toinhabitants. A structural unit is a component of the institution, which hascertain independence, special tasks and functions and has its own head inaccordance with the institution law and regulations. The structure of the

36

Par Latvijas Strat isk s att st bas pl nu [Cabinet of Ministers April 9, 2010 Order Nr.203 The Latvian Strategic Development Plan 2010 to 2013], Latvijas Vstnesis January 28, 2011, 16 (4414)http://www.vestnesis.lv/body_print.php?id=225066 (referred on June 7, 2011).37 Ibid.




institution is formed to ensure the performance of functions and tasks in one

or several branches (sub branches) or cross-branch policy areas(hereinafteralso areas of responsibility). Very small institutions do nothave separate structural units or a deputy head except in cases when such isrequired by international normative enactments (incl. European Union) or if the institution is responsible for two areas. The central apparatus of theinstitution is formed by two levels of structural units: higher level structuralunits (e.g. departments) and lower level structural units (e.g. sections). Thehead of the institutions taking into account efficiency considerations andeconomic effectiveness can additionally form more than two levels (e.g.

sector or directorate) to ensure goal oriented and functionally effectiveoperations. Taking into account the specifics of its operations the institutioncan form territorial structural units (e.g. administrative board). The same prerequisites that are foreseen for organisation of structure of centralapparatus must be observed for organisation of structure of territorial units.Forming a lower level structural unit the principle that the optimal number of immediate subordinates that a manager is capable of effectivelymanaging is 5-7 people should be observed. Smaller structural units can beformed in exceptional cases taking into account the tasks and functions of

the structural units. The post of deputy head of a structural unit can beformed if there are at least 10 employees in the structural unit or thestructural unit has at least two areas of responsibility. Higher-level structuralunit heads may not have more than two deputies. If the higher-levelstructural unit consists of lower level structural units the heads of structuralunits of lower level shall assume the responsibility of deputy heads of higher-level structural units. If the higher-level structural unit is big or very big and there are more than two areas of responsibility under its authority,the head of the higher-level structural unit can have one deputy who is notthe head of a lower-level structural unit. Hierarchy in the branches and sub branches shall be observed, lower level structural units made subordinate tohigher-level structural units while forming the structure of the institution. Inaccordance with the specifics of the areas of responsibility heads of institutions may form independent (lower-level) structural units that are notsubordinate to higher-level structural units. Certain positions in theinstitution may be report directly to the head of the institution withoutforming a part of the structural unit or being subordinate to head of a higher-level structural unit.38

38 Valsts prvaldes iest des strukt ras izveidoanas k rt ba, MINISTRU KABINETA IETEIKUMI Nr. 2.December 14, 2010 [Cabinet of Ministers December 14, 2010, The recommendations No. 2




Traditionally in accordance with management theory it is accepted that

the optimal number of subordinates that can be effectively managed by amanager is from three to eight. To promote the organisation of efficient public administration by reducing the existing small structural units (upto 4employees), the recommendations propose forming structural units with fiveto seven subordinates (average structural unit in accordance with jobcatalogue for state and municipal institutions) and therefore requests headsof institutions to look into the possibility of merging functions to formaverage or big structural units thereby reducing fragmentation and number of heads of different levels. 39

In order to promote the effective organisation of support functionswhile implementing the necessary measures including the centralisation of functions at the ministerial level, standardisation of processes andagreements at the inter departmental level on the provision of supportfunctions, the recommendations offer indicators based on international practice for determining the number of employees for carrying out varioussupport functions. 40

The main tasks planned to be fulfilled in the first quarter of 2011 is theaudit of two functionsupervisions of commercial enterprises and

supervision of education institutions. The audit of functions was started on November 17, 2009 and was carried out all through 2010 with inter institutional working groups and involvement of independent consultants.The progress of audit was discussed numerous times in the Committee for audit of functions and in other related consultative institutions such as theReform management group and the results of the audit was widely discussedamong the direct stakeholders as well as in debates during the annualconferences for best practices in administration and partnership. As the auditof functions was funded by the EU ESF project Reducing administrative burden and simplification of administrative procedure, in accordance with project results a Plan of measures for reducing administrative burden wasdeveloped for each audit result. The approval and drafting of the plans for review by the Cabinet of Ministers shall be concluded in the first quarter of 2011.41

Procedure for Organisation of Structures of Public Administration Institutions]http://www.likumi.lv/doc.php?id=222935 (referred on June 7, 2011).39 Par Latvijas Strat isk s att st bas pl nu [Cabinet of Ministers April 9, 2010 Order Nr.203 The

Latvian Strategic Development Plan 2010 to 2013] Latvijas Vstnesis January 28, 2011, 16 (4414)http://www.vestnesis.lv/body_print.php?id=225066 (referred on June 7, 2011).40 Ibid. 41 Ibid.




The informative report of the State Chancellery Significant structural

reorganisation carried out in public administration

42

concludes that amajority of institutions have carried out the optimisation of functions andmerging of structural units thereby reducing the number of heads of units.Significant reorganisation was carried out in the Central Statistical Bureauand there is now only one deputy head in structural units with more than 10employees and structural units that had less than five employees wereliquidated. The State revenue service that was divided into several levelswas also reorganised into a single level organisational structure. There wasalso a reduction in the number of employees of the Lottery and Gaming

supervision inspectorate by 45.7% in 2010; the functions were reorganisedand as a result of the reform a compact efficient institution was formed. Thenumber of positions in the State Treasury was reduced by 33% in 2010; thecentral apparatus and functions of implementation of state budget andcontrol were optimised and full remote customer service was introduced.

Implementing public administration structural reforms it is essential toensure efficient administration of institutional and human resources thatwould provide for the optimal use of budget funds and promote applicationof unified requirements in the administration processes. Several institutionsstarted structural reorganisation in 2009 reviewing the scope of functions,number of employees and ensuring the economy of budget funds. For example cardinal structural reforms were carried out in the Ministry of Agriculture on July 1, 2009 to simply the bureaucratic procedure andorganise an efficient ministerial structure by reducing the number of leadingmanagement positions in the ministry and delegating more responsibility toheads of structural units (departments, independent sections). 43

The Latvian civil service cannot be termed efficient. Civil servants

have certain qualifications and they serve in the public service. They areappointed by administrative enactments. The state cannot be managed as a private enterprise, but this is not always taken into account and at presentthere is a misconstruing of rotation of civil servants. Often it is consideredas demotion of civil servants, although it should be the other way round.Rotation has a range of legitimate goals. For example it prevents the civil

42 Veikti btiski struktur lie prk rtojumi valsts prvald, Valsts kanceleja [ Significant Structural Reorganization Carried Out in Public Administration], State Chancellery June 3, 2011,

http://www.mk.gov.lv/lv/aktuali/zinas/2011gads/06/030611-vk-03/ (referred on June 11, 2011).43 Informat vais ziojums Par struktur lajiem prk rtojumiem valsts prvald[Informative report The Structural Reforms in Public Administration],http://www.mk.gov.lv/lv/aktuali/zinas/2011gads/06/030611-vk-03/ (referred on June 11, 2011).




servant from monotonous work and ensures the enhancement of

competences. The opinion in Western Europe is that civil servants must berotated every five years. If it does not happen then it is considered to be anegative feature. Latvia should introduce political civil servant status. Such positions are characteristic for majority of parliamentary republics. For example in Latvia it could be introduced for the State Secretaries of Ministries. At present there is often some sort of friction between theMinister and the State Secretary. The State secretary is publicly discreditedin order that the Minister can get rid of the state secretary. Consequentlythe civil servant is changed in such an unacceptable manner. Introducing a

political civil servant status a simpler rotation of civil servants can beensured. There would be a link between the political (minister) and the civilservant. A procedure for rotation between political civil servants andordinary civil servants and vice versa should be developed. Thereforeamendments should be made in the Civil Service Law. There is nodistinction whether the civil servants performance is unsatisfactory on theone hand or the particular position is not useful on the other hand. If thecivil servants performance is not satisfactory it does not mean that the position should be liquidated. Instead further qualification or dismissal of the relevant civil servant should be considered.44

IV. STRUCTURAL CHANGES IN PUBLIC ADMINISTRATION

Ministries are the leading public administration institutions. EgilsLevits, presenting a paper at the Latvian academy of sciences in 2010critically evaluated this process and underlined that the reduction of ministries will not affect public administration. It will leave an impact onthe decision making process. The reduction in number of ministries cannot be the end goal. In comparison to other parliamentary democracies thenumber of ministries in Latvia is below average. Discussions should not beabout the formal liquidation of ministries but on whether the particular sector is to be developed at the governmental level. The cabinet of ministersimplements various policies and the ministries reflect the priorities of theexisting political powers. For example in France there is a Future ministrywhich does not have its own administration; however the political parties in power have acknowledged it as important. Egils Levits points out that the

44 Gatis Litvins, Egils Levits kritiski vrt valsts prvaldes reformas [ Egils Levits Critically

Evaluates State Administration Reforms] JURISTA VRDS Nr.19(614) 2010.gada 11.maijs,http://www.juristavards.lv/index.php?menu=DOC&id=209384 (referred on June 7, 2011).




decision regarding the number of ministries is a political decision and a

positive example mentioned is the State reform ministry in the beginning of 90s. Its tasks were to evaluate the situation and carry out publicadministration reforms. Its liquidation was a mistake as publicadministration has to be reformed constantly. The state administrationstructure law includes principles of self improvement mechanism.45

A. Reorganization of State Chancellery

At present the State chancellery performs part of the state reform

ministry functions. However, the Minister for economics and chairperson of the Jaunais laiks ( JL) [New Era] council Artis Kampars opinion is that theState chancellery in its old form is no longer necessary. The Ministry of Justice can handle the supervision of legal documents and politicalcoordination can be handled by the personnel of the Prime Ministersofficemaybe as an extended office. In his opinion the State chancellery isthe proper starting place where a lot of things can be successfully optimised.Over the years the State chancellery has become a significant machine withnumerous functions which is often operationally idle.46 The Saeima rejected

the amendments drafted by the Tautas partijas (TP) [Peoples Party] factionin the State administration structure law that foresee the reorganisation of the State chancellery merging it with the Ministry of Justice. TP had hopedthat from September 1, 2010 the Ministry of Justice would be responsiblefor the organisational aspects of operations of the Cabinet of Ministers aswell as for coordination and supervision of the implementation of decisionsof the Cabinet of Ministers and the Prime Minister. 47 The member of the presidium of Association of Latvian lawyers Egils Levits also voiced hisopinion on the reorganisation of the State Chancellery: Upon accession

into the European Union weaknesses in the central government were pointedout while evaluating the Latvian public administration. Each ministryimplements the policies in its own sector and together they implement thecommon state policy. The State chancellery as a coordinating institutionensures that the ministries implement them in a coordinated manner.Without such a central institution the state ministries would separately

45 Ibid. 46 Kampars: Valsts kanceleja vairs nav vajadz ga [ Kampars: The State Chancellery Is No Longer Needed ], http://www.diena.lv/sabiedriba/politika/ papildinata-kampars-valsts-kanceleja-vairs-nav-

vajadziga-677861 (referred on June 12, 2011).47 Saeima noraida TP prieklikumu likvidt Valsts kanceleju [The Saeima Reject a Proposal of TP

(Peoples Party) to Remove the State Chancellery], http://zinas.nra.lv/latvija/politika/22263-saeima-noraida-tp-priekslikumu-likvidet-valsts-kanceleju.htm?cshow=1&cnr=2 (referred on June 12, 2011).




By the Cabinet of Ministers decree No. 676 On liquidation of the

Ministry for Regional development and municipal affairs

51

from theDecember 31, 2010 the Ministry for regional development and municipalaffairs was liquidated by merging it with the Ministry for Environment toensure the enhancement of public administration institutional system andoperational efficiency in accordance with the clause 1 of the part 4 of theArticle 15 of the State administration structure law.

However, the chairperson of the Latvian chamber of commerce andindustry (LTRK) anete JaunzemeGrende objected to such delegation of functions to the Ministry of Environment expressing the opinion that the

development and supervision of state policy planning documents and National development plan as well as monitoring of public services should be concentrated in one state institution. It helps avoid fragmentation of public administration and promotes the development of small efficient public administration, incl. promoting the use of essential electronicservices by entrepreneurs. Reviewing the Latvian public administrationsystem structure, the LRTK believes that the State chancellery should be theinstitution responsible for the execution of the abovementioned functions. Itis especially important during the period, when radical structural reforms

and their preparation are required for the state, which that this powerfulcoordination centre should be under the supervision of the Prime Minister.Entrepreneurs believe that the merging of such functions should be avoidedwhere policy conflicts may arise within one institution (e.g. promotion of economic development (investment attraction policy) and limitingdevelopment from the environmental protection perspective), and therebyhinder economic recovery and even worsen the business environment. 52

Merging two ministries from the existing numerous ministries isneither the wrong nor punishable action. In fact, it is just the opposite. In acountry with 2 million inhabitants eventually one has to de factounderstand that we can afford a small but efficient public administrationwhich can never be associated with a number of ministers exceeding 10, preferably, including the Prime Minister. The crux of the issue is not the

Optimization and Financial Resources Between the Ministry of Health and the Ministry of

Agriculture ] December 13, 2010 (prot.Nr. 71 37.§).51 November 22, 2010, MK r kojums Nr.676 Par Reionls att st bas un pavald bu lietu ministrijaslikvidcijas nodroinanu [Decree of the Cabinet of Ministers No. 676 On Liquidation of theMinistry for Regional Development and Municipal Affairs] (LV , 186 (4378), November 24, 2010)

[st jas spk November 22, 2010].52 LTRK: RAPLM funkciju nodoana Vid M ir sasteigta [ LCCI: MRDLG Mean Transfer Function

Avg M Is Hurried ]. http://www.delfi.lv/news/ national/politics/ltrk-raplm-funkciju-nodosana-vidm-ir-sasteigta.d?id=35184385 (referred on June 15, 2011).




number of ministers but the rational efficient division of state functions.

Such a division which would promote goal oriented development increasethe living standards of inhabitants at the same time structurally not programming in the division of functions predictable possible conflicts of interests between the various sectors, stakeholders or even territories. Notmentioning the risk of demolishing progressive, growth promotingstructure that was built over the years, thereby pushing back progress over a period of at least 8 years. 53

Despite the contrasting opinions the Ministry of environmental protection and regional development has started functioning with Raimonds

V jonis becoming the Minister of this merged structure. It is a fact thatstructural changes within the ministry are yet to be commenced (at presentthe structure and functions have been automatically put side by side under the same roof) and the experience of the Minister V jois should be positively evaluated. However, careless steps carrying out internal reformscould significantly change the implementation of separate rather importantfunctions leading even to degradation,54 as pointed out by Mris Kuinskis,while analysing the benefits and threats of such mergers.

First of all, there is a reduction in administrative management. Even the

maintenance of the Ministers office would cost some money notmentioning accounting, internal audit, personnel department etc..Secondly and most essentially this merger is favourable for the

efficient use and administration of European Union Structural funds. Themunicipalities have been the main beneficiaries and stakeholders in theEuropean financing for environment for water management infrastructureand waste management systems which were managed by the former Ministry. Similarly the activities from EU funds for improvement of citysurroundings cross border cooperation and IT etc. that have been taken over will only be successfully mobilised by the administration of these funds,efficient use and supervision.

Thirdly there is a possible increase of joint weightage of theMinistry within the Cabinet of Ministers. Unfortunately it is the traditionin Latvia not to evaluate the ministry according to the importance of thefunctions but according to the amount of money the ministry manages.That is why the most desirable ministries among politicians have beenthe Ministries for Transport, Economics, Defence and Finance. On the

53 M ris Ku inskis: Apvienojas divas ministrijas. Ko t l k?[ Maris Ku inskis: Merging the TwoMinistries. What Next?], http://www.delfi.lv/news/comment/ comment/maris-kucinskis-apvienojam-divas-ministrijas-ko-talak.d?id=36112876 (referred on June 11, 2011).54 Ibid.




other hand Ministry for regional development and municipal affairs

(RAPLM) connected with municipalities and planning has never causedany political fights in the process of forming the government. Thereforeit has been difficult to force the peer ministers and the Prime Minister toevaluate the importance of the functions.

In relation to supervision and methodical management of municipalities most probably there would not be any gains or losses as sucha function requires constant, methodical work which is mainly performed bythe civil servants. Moreover retaining the specialists of RAPLM, it could be performed sufficiently in professional manner. The involvement of the

Minister is only necessary in case of infringements or disputes. However theleast skill required from the Minister responsible is to at least talk about theresponsibilities of the heads of municipalities or even threaten to dismissone. It is another matter that the minister has to be able to understand all theoperations of municipalities and should more often think about themunicipalities and not just the problems. Work on the development of onestop agencies in municipalities should be started immediately. 55

C. Threats of Mergers

Unfortunately the supervision of municipalities and methodicalmanagement (as well as administrative territorial reforms) is the mainfunction with which the major part of the society associates the work of ministry responsible for municipalities. One of the basic goals why such ahuge part of specialists were in favour of formation of a separate ministryeight years ago has moved to the background. The basic goal is to increasethe role of municipalities and involve them in joint goal oriented work for the development of the state. Forming a powerful regional level that wouldcoordinate and take over the major part of operations of state institutions in

the regions, be involved in the overall national planning system, make goaloriented use of European structural funds, it becomes ever the more possibleto influence the dominance of the sectoral ministries (we know better whatyou need) over the interests of the inhabitants of the territories. Along withthe development of the National development plan for 20072013 theministry has undertaken responsibility for all planning of overall statedevelopment planning and supervision of plan, the improvement of which isstill a topical item on the agenda. These, in particular, above mentionedtasks are those that could prove to be threat to the development of the state

in the future if they are discontinued or if just a formal approach is used. It

55 Ibid.




is possible to reduce the administrative apparatus to some extent by merging

the ministries as well as to have an impact by merging the internalstructures.56

CONCLUSIONS

The process of enhancement of public administration in Latvia is oneof the elements of states with the rule of law. The most significant problems in the organisation of public administration have been underlinedin the paper but these certainly are not the only ones. The stateadministration structure law provides the necessary regulation to form anefficient public administration. However, nevertheless discussing aboutstructural reforms in Latvia and their progress, people with weak nervoussystems sooner or later fall prey to the feeling of hopelessness. On the onehand there are people with opinions and vision on exactly what should bechanged and improved in the current public administration. On the other hand these news ideas usually are not practically implemented. Seeingsuch a progress of events the initial disillusion of many people changesinto despair. What is happeningIs the lack of political will the only problem or is the problem wider/deeper?57 One of the variants of theanswer can be found in the book which was published at the end of 2010The Other Side of Innovation: Solving the Execution Challenge. It istrue that the book is mainly oriented towards innovation in enterprises,however, many of the concepts can be useful in terms of structural reformsas both innovations as well as reforms in essence are very similarin bothcases the aim is to achieve new, high quality better results with theexisting and limited resources. The main idea as emphasised by the author of mentioned book is that a new idea is a good thing but it is not enough. No matter how ingenious the idea is it should be practically implemented

in life. A lot of good and valuable theoretical ideas have remained justideas as their methods of implementation have been wrong.58

One of the most frequently committed mistakes in an enterprise is toentrust the practical implementation of theoretical ideas to existingstructural units with the most experience in related issues. The authors callthis unit performance engines. These performance engines in terms of their structure and number of staff are oriented towards the performance of existing tasks in the best manner possible. However to demand that this

56 Ibid.57 Supra note 5.58 Ibid.




structural unit cardinally change the way of its operations is an impossible

proposition. They were just not created for such purposes and they are notable to achieve it. The second most frequently committed mistake is toattempt to fully dismantle the existing system and from a blank sheetcreates a new, contemporary efficient system instead. However as pointedout by the authors of the book, [t ]he chances of one individual against thebureaucratic octopus are incredibly poor. The new era in Latvian historyof structural reforms has experienced both these approaches. The attempts todemand that responsible ministries carry out structural reforms in areasunder their competence as well as attempts to individually chasten and

break the existing system in most cases have ended unsuccessfully.However if we trust the authors of the book, these failures have been butnatural as the way in which reforms were attempted had been wrong. The possibility that ministries would be able to structurally reform their ownadministrative areas are insignificant even if they achieve the desired. Theiron fist principle most probably is also doomed to failure. What is left then?The first and most important conclusion of the author of the paperif there isa desire to carry out significant structural reforms in an area, then theresponsibility of carrying out the reforms should not be entrusted to the

respective ministry. The formation of cross ministerial working groups willalso most probably yield insignificant results. In order that reforms work their planning and implementation must be entrusted to a sufficiently largenumber of experts with the relevant qualifications but those who are notformally and practically connected to the existing system (possibly notconnected to Latvia evenfor example internationally recognised auditingcompany?). Secondly the top level management should be responsible for the progress of reformsin Latvias case not the respective sectoral ministers but the heads of the government. Thirdly each reform in a separate sector needs a separate working groupa common working group for carrying outthe whole reform in public administration would most probably not haveany significant consequence.59

On the whole it should be concluded that to successfully implementreforms in a field just the vision on what should be changed is not sufficientenough; it is necessary to essentially change the way in which reforms arecarried out. Certainly no one can give hundred percent guarantee of thesuccess of these reforms. However it is at least worth trying?60

The justice system can be created as a stable and permanent one with just some corrections from time to time but public administration reforms

59 Ibid.60 Ibid.




need to be carried out constantly. Public administration has to react to

actualities, new tasks, changes in legislation and the society. There should be an institution that externally and independently ensures such reaction andimplements the public administration reforms. This cannot be entrusted tothe institution heads themselves as there is a considerable self preservationinstinct in public administration. 61

The significance and impact of the decision on the development of thestate in such a decisive moment for Latvia shall be evaluated by economists,sociologists, historians and the media who already have something to say inthis matter. However, the real solution would be the answer to the question:

will Latvia in the foreseeable future transform itself from a state most badlyhit by the crisis in the European Union to a state with successful and moderneconomy, educated society, highly qualified work force and a place wherethe worlds most successful companies would like to invest. We are faced by a historical choiceto go back into stagnation and underdevelopment or see oneself as a strong nation that wishes to live in Latviaone of thesuccessful countries of the European Union and agree to jointly work towards the achievement of this goal.62

61 Supra note 3.62 Divi gadi vad b: ce uz Latvijas ilgtsp j gu izaugsmi! [Two Years Management: Towards

Sustainable Growth in Latvian!] http://valdisdombrovskis.lv/divi-gadi-vadiba-cela-uz-latvijas-ilgtspejigu-izaugsmi/ (referred on June 7, 2011). unhttp://www.diena.lv/sabiedriba/politika/dombrovskis-divi-gadi-vadiba-cela-uz-latvijas-ilgtspejigu-izaugsmi-770720 (referred on June 7, 2011).



2011 BIODIVERSITY AND BIO-FUELS 649

Similarly, the main cause for deforestation in Atlantic Forest Biome was the

planting of sugarcane in the sixteenth, seventeenth and early nineteenthcentury for sugar production and exports mainly to European countries, the planting of coffee in nineteenth century, after the decline of sugar exportsand the increase demand for coffee by other countries which continued intothe twentieth century and in the end of this century the cultivation of sugarcane to produce ethanol as a bio-fuel and sugar became a significantvector of deforestation in the Atlantic Forest Biome.11

Despite the Amazon Biome still the best preserved biome,deforestation to permit soybean and sugarcane field due to the increasing

global demand for bio-fuels has raised specialists concern

12

.In this process of destruction of Brazil’s terrestrial biomes for agricultural expansion the degree of destruction of biodiversity andextinction of species is in fact very difficult to be evaluated more precisely by the fact that biodiversity is scientifically poorly known and researched.However, although little is known about the biodiversity losses, it certainlyis significant and irreparable when the extinction of species of plants,animals or microorganisms occurs.

II. BIO-FUELS

In Brazil, the Law 9.478 of 1997, which provides for the Brazilianenergy policy, defines in its article 6 paragraph XXIV bio-fuel as the “fuelderived from renewable biomass for use in internal combustion engines or,in accordance with regulations for other types of power generation, whichmay partially or totally replace fossil fuels”. Furthermore, this law defines biodiesel as a form of bio-fuel.

Brazil was a pioneer in bio-fuel research because it has historically

been an oil importing country and in 1973 with the Yom Kippur War in theMiddle East due to the possibility of difficulties in importing oil from thisregion initiated alternative researches to replace oil as fuel.

First, Brazil created the Pro-Alcohol (National Alcohol Program) in1975 through Decree-Law 76.593 to replace part of the gasoline used as fuelfor cars with ethanol made from sugarcane gradually increasing the amountof ethanol blended with gasoline. In 2005 it was launched the National

11 DÉLCIO R ODRIGUES & LÚCIA ORTIZ, EM DIREÇÃO À SUSTENTABILIDADE DA PRODUÇÃO DE ETANOL

DA CANA-DE-AÇÚCAR NO BRASIL 5-18 (São Paulo: Vitae Civilis 2004).12 I. C. G. Vieira, P. M. Toledo, J. M. C. Silva, H. Higuchi, Deforestation and threats to thebiodiversity of Amazonia, 68 BRAZ. J. BIOL. Retrieved Nov. 2008 fromhttp://www.scielo.br/scielo.php?pid=S1519-69842008000500004&script=sci_arttext




Program of Biodiesel and the Law 11.097 of 2005 which regulated the

introduction of biodiesel in Brazilian energy matrix. According to the National Agency of Petroleum, Natural Gas and Bio-fuels in December 2010, approximately 75% of biodiesel produced in Brazil were fromsoybean, 20.5% from ox fat and 2.4% from cotton oil.13

In 2005, Brazil produced 736 m3 of biodiesel and in 2010 this production increased to 2.397,272 m3. As the main raw material is soybeanthis increase stimulated the increase in production of soybean and thusexpanding the agricultural frontier for this purpose.

III. THE CONVENTION ON BIOLOGICAL DIVERSITY (CBD) AND BIO-FUELS In 2007, the 12th meeting of the Subsidiary Body on Scientific,

Technical and Technological Advice (SBSTTA) of CBD the relationship between biodiversity and production of liquid bio-fuels was considered anemerging new issue for the conservation and sustainable use of biodiversity because large-scale bio-fuel production could have adverse impacts on biodiversity, including, among others, habitat fragmentation anddegradation, increased greenhouse-gas emissions from degraded carbonsinks and deforestation, water pollution and eutrophication, andoverexploitation caused by land conflicts and increase in food prices.14

In 2008, during COP 9 in Bonn Decision IX/2 was adopted. It urgedParties to promote the sustainable production and use of bio-fuels with a viewto promote benefits and minimize risks to the conservation and sustainableuse of biodiversity; promote the positive and minimize the negative impactson biodiversity that would affect socio-economic conditions and food andenergy security resulting from the production and use of bio-fuels; anddevelop and apply sound policy frameworks for the sustainable productionand use of bio-fuels taking into account their full life cycle.15

The Decision IX/2 also called Parties and the research community,among others, to investigate and monitor the positive and negative impactsof the production and use of bio-fuels on biodiversity and related socio- 13 Eduardo Magossi, Biodiesel Fortalece Pequeno Produtor do Nordeste, retrieved fromhttp://www.biodieselbr.com/noticias/em-foco/biodiesel-fortalece-pequeno-produtor-nordeste-210311.htm.14Convention on Biological Diversity (2007), UNEP/CBD/SBSTTA/12/9, New and Emerging IssuesRelating to the Conservation and Sustainable Use of Biodiversity, Biodiversity And Liquid Bio-fuel Production 2, retrieved from http://www.cbd.int/doc/meetings/sbstta/sbstta-12/official/sbstta-12-09-

en.pdf.15Convention on Biological Diversity (2008), UNEP/CBD/COP/DEC/IX/2, Agricultural Biodiversity: Bio-fuels And Biodiversity 2, retrieved from http://www.cbd.int/doc/decisions/cop-09/cop-09-dec-02-en.pdf.




economic aspects, including those related to indigenous and local

communities.During COP 10 held in 2010 in Nagoya (Japan) the Decision X/37 wasadopted on “Bio-fuels and Biodiversity” which urged Parties and other Governments to apply the precautionary approach in accordance with thePreamble to the Convention, and the Cartagena Protocol, to the introductionand use of living modified organisms for the production of bio-fuels as wellas to the field release of synthetic life, cell, or genome into the environment,acknowledging the entitlement of Parties, in accordance with domesticlegislation, to suspend the release of synthetic life, cell, or genome into the

environment.16

This decision also invited Parties, other Governments and relevant

organizations to assess and identify areas and, when appropriate, ecosystemsthat could be used in, or exempted from, the production of bio-fuels, tosubmit to the Executive Secretary experiences and results from assessmentsof the impacts of bio-fuel production and use on biodiversity and toelaborate supportive measures to promote the positive and minimize or avoid the negative impacts of the production and use of bio-fuels on biodiversity.

IV. U NITED NATIONS FRAMEWORK CONVENTION

ON CLIMATE CHANGE AND BIO-FUELS

The United Nations Framework Convention on Climate Change is aninternational treaty that brings in its second article that the key objective toachieve stabilization of greenhouse concentrations gases in the atmosphereat levels that prevent a harmful human interference in the climate systemand in a timeframe that allows ecosystems to adapt naturally to climatechange, to ensure food production and sustainable economic development.

The UNFCCC came into force on March 21, 1994, ninety days after the deposit of the fiftieth instrument of ratification by countries. In Brazil,the Convention was signed in 1992 during the United Nations Conferenceon Environment and Development held in Rio de Janeiro, and ratified by National Congress in February 1994, entering into force on May 29, 1994.

The Conference of the Parties (COP) is an instrument of applicabilityof the Convention, created to return decisions at annual meetings to ensure

fulfilment with the Convention’s objectives. The report of the 16th Session16 Convention on Biological Diversity (2010), UNEP/CBD/COP/DEC/X/37, Bio-fuels and Biodiversity, 2-4, retrieved from http://www.cbd.int/doc/decisions/cop-10/cop-10-dec-37-en.pdf.




of the Conference of Parties 17 held in November and December 2010

brought the need for greater emphasis on managing the production of biomass in the GEF-5 Land Degradation Strategy18 , recognizing itsimplications on soil conditions and the ecosystem which contribute to theincreased emission of greenhouse gases.

Among the technical documents of the UNFCCC, it is worthmentioning the 'Challenges and opportunities for mitigation in theagricultural sector'19 of November 21, 2008 which attested that agriculturalactivities are responsible for the release of significant amounts of carbondioxide, methane and nitrous oxide into the atmosphere, which have a long-

term influence on global climate. According to the document, in 2005 theregional emissions were higher in South and Southeast Asia and LatinAmerican countries and the carbon dioxide had the largest increase inemissions that year due to biomass burning.

Due to the close relationship between agriculture and global warming,as a major source of release of carbon dioxide in the atmosphere is cuttingor burning of vegetation for land clearing and planting and that thisagricultural practice has increased due to the demand for bio-fuels, thedocument provides a recommendation for the future that bio-fuels made

from agricultural raw materials, require the development of innovativetechnologies and appropriate government investments to reach their potential to contribute to the mitigation of greenhouse gases.

V. BRAZILIAN LEGISLATION

Biodiversity is protected in Brazil mainly by Law 4.771 of 1965 whichestablished the Forest Code due to the fact that this law prohibits thedeforestation of part of the rural property to agricultural practice in allBrazil’s biomes.

This law prohibits deforestation in 80% of rural’s property area in theAmazon biome, 35% of the rural’s property area in Cerrado, and 20% of therural’s property area located in other biomes.

17 Framework Convention on Climate Change (2010), FCCC/CP/2010/5, Report of the Global Environment Facility to the Conference of the Parties, retrieved fromhttp://unfccc.int/resource/docs/2010/cop16/eng/05.pdf.18 The Global Environment Facility (GEF) is an independent financial organization that unites 182member governments to discuss global environmental issues. The GEF provides grants to developingcountries and countries with economies in transition for projects related to biodiversity that benefit

global environment, promoting sustainable livelihoods.19 Framework Convention on Climate Change (2008), FCCC/TP/2008/8, Challenges and Opportunities for Mitigation in the Agricultural Sector , retrieved fromhttp://unfccc.int/resource/docs/2008/tp/08.pdf.




Moreover, this law prohibits the deforestation of tracks that can range

from 30m to 500m depending on the length of the river.The Forest Code also prohibits deforestation around ponds, lakes andnatural or artificial water reservoirs (dams), in the springs, even flashing aminimum radius of 50 (fifty) feet wide, at the top of hills, at mountains, atslopes or parts thereof, with slopes above 45 degrees, and altitude above1.800 (one thousand eight hundred) meters, among other areas.

By protecting forests and other forms of native vegetation on rural properties in all Brazil’s biomes The Forest Code is not only protectingvegetal biodiversity but also animal biodiversity and microorganisms that

lives in these forests. Thus, the rural property that grows soybeans for biodiesel or sugarcane for ethanol production cannot deforest these areas protected by this law.

Unfortunately, it is now in Brazil’s National Congress a bill of Mr.Aldo Rebelo to change the text of the Forest Code to significantly reducethe protection currently afforded by this law to all biomes by limitingdeforestation in rural properties and therefore resulting from agriculturalactivity and agricultural expansion. This change will certainly result in greatincrease of deforestation including agricultural expansion to increasedomestic production of soybean and sugarcane including for the productionof biodiesel and ethanol, in other words, bio-fuels for domestic consumptionand export.

Other laws deal with Brazilian biodiversity as a whole. Decree 4339 of 2002 created the National Biodiversity Policy that has as general objectivethe promotion of biodiversity conservation and sustainable use of itscomponents, with the fair and equitable sharing of benefits arising from theuse of genetic resources from components of genetic resources and

traditional knowledge associated with these resources.Furthermore, this decree establishes as a component of NationalBiodiversity Policy, which should be applied to all biomes, the knowledgeof Brazilian biodiversity through scientific research and systematization of existing knowledge (Component 1), the conservation of biodiversity(Component 2); sustainable use of biodiversity (Component 3); monitoring,assessment, prevention and mitigation of impacts on biodiversity(Component 4), promotion of controlled access to geneticresources and to associated traditional knowledge and benefit sharing

(Component 5); the promotion of education to disseminate existinginformation on biodiversity (Component 6), and legal and institutionalstrengthening for sustainable management of biodiversity (Component 7).




On September 15, 2010 was issued another decree which established

the Action Plan for Prevention and Control of Fires and Deforestation in theCerrado in order to promote measures and actions aimed at reducing the rateof deforestation, forest fires and wildfires in this biome.

In relation to bio-fuels Brazilian legislation covers the Law 9.478 of 1997 which provides, among other things, the National Energy Policy. Thislaw was published in 1997 and at that time did not mention bio-fuels but itswording was changed by Law 11.097 of 2005 to include bio-fuels in their devices. So with this new writing the Law 9.478, which included among itsobjectives the protection of the environment, now, includes also the increase

in economic, social and environmental bases, of bio-fuel share in nationalenergy policies.The Law 9.478 of 1997 created the National Energy Policy Council

linked to the Presidency and chaired by the Minister of Mines and Energy,is responsible for proposing to the President national policies and specificmeasures to establish guidelines for, among others, the bio-fuels program.

Besides of Law 9.478-1997 established the National Agency of Petroleum, Natural Gas and Bio-fuels as a regulator of the oil industry,natural gas, bio-fuels and their derivatives bound to the Ministry of Mines

and Energy. The Agency aims to promote regulatory, contracting andmonitoring of economic activities in the petroleum industry, natural gas and bio-fuels and their competence to implement, within its sphere of competence, the national policy of oil, natural gas and bio-fuels contained innational energy policy, as well as supervise the activities members of the oilindustry, natural gas and bio-fuels, and may impose administrative penaltiesand fines provided by law, regulation or contract.

The Agency also has jurisdiction to enforce best practices to theconservation and rational use of oil, natural gas, bio-fuels and their derivatives and preservation of the environment, organize and maintainarchives of information and technical data related to the regulated activitiesof the oil industry, natural gas and bio-fuels, and specify the quality of petroleum, natural gas, their derivatives and bio-fuels.

The Law 9.478 of 1997 provides that the exploration, development and production activities of oil and natural gas will be carried throughconcession contracts with the companies after the bidding process and thatthese contracts lay out in which ways the government will participate inincome generated by these activities performed by firms.

Among the forms of government involvement is the gain of royalties inwhich 25% of each royalty share received by the government that exceed5% of production must be given to the Ministry of Science and Technology




to fund programs supporting scientific research and technology

development applied to petroleum, natural gas and bio-fuels and programsfor prevention and recovery of damages caused to the environment by theseindustries.

CONCLUSION

In Brazil, soybean and sugar cane used for food but also for the production of bio-fuels with the increasing conversion of native forest areasmainly in the Cerrado biomes, Amazon and Atlantic forest are a significantcause of Brazilian animal, vegetal and microorganism biodiversity loss, because of forests and other native vegetation constitute the vegetal biodiversity and serve as habitat for animal biodiversity and microorganisms.

The destruction of Brazilian tropical forests shows despite the existinglegal protection reveal a certain lack of effectiveness of environmentallegislation for protection of forests and other native vegetation forms and biodiversity in general.

The production of bio-fuels in Brazil is legally regulated in a way to beincreased its participation in the Brazilian energy matrix and, consequently,its production as well as the soybean and sugarcane that are the main source

for production. On the other hand, this same legislation provides that the biodiesel’s production should not cause damages to the environment andtherefore to the biodiversity that exists in it. However, the destruction of legally protected forest areas for agriculture to produce soybeans andsugarcane, partly used for bio-fuel production, reveals a lack of effectiveness of these environmental protection legal determinations.

Internationally the CBD reveals a great concern with the negativeimpacts on biodiversity caused by bio-fuel production as well as the use of genetically modified organisms for bio-fuel production. In turn, the

UNFCCC recognized the need for greater control in GEF resourcesconcession for bio-fuel production by recognizing that it may impactecosystems, therefore, biodiversity, and contribute to increased emissions of greenhouse gases and therefore, to increase global warming, rather thancontributing to its mitigation.

Finally, it must be concluded that for bio-fuel’s production in Brazildoes not cause serious negative impacts on its biodiversity it is necessarythat the Brazilian government make a better monitor if the Brazilianenvironmental legislation for protection of forests and biodiversity in

general is being fulfilled and also do not approve bills that would reduce thecurrent level of legal protection of these forests and their biodiversity.




Similarly, Brazilian government should supervise more intensively the

production of bio-fuels and mainly soybean and sugarcane crops in a waythat the forests and their biodiversity are protected as an essential part of theenvironment thus increasing the effectiveness of Brazilian Law thatdisciplines the production of bio-fuel.

In this sense it would also be desirable to introduce in currentlegislation that regulates the production and sale of bio-fuels the mandatoryrequirement of the evidence that in the entire chain of its production,including the cultivation of soybeans, sugarcane and other raw materials,occurred with strict enforcement of environmental legislation for protection

of forests and biodiversity in general to allow its sales for domestic marketand export.So, the production and use of bio-fuels in Brazil and countries which

Brazil exports wouldn’t cause negative impacts on biodiversity or contributeto the increase emission of greenhouse gases and Brazil and all thesecountries would be attending effectively CBD’s and UNFCCC’s goalscontributing to greater effectiveness of these two important internationalconventions to ensure truly sustainable development and the very dignifiedsurvival of the human species on planet Earth.



657

DECENT WORK FROM THE PERSPECTIVE OF THE

RIGHT TO DEVELOPMENT AND HUMAN

DEVELOPMENT

Saeed Reza Abadi

According to Director-General of International Labor Organization

(ILO), the purport of decent work reflects in human personal and social life.

The decent work, on the level of personal life, in other words, employment

and human subsistence, addresses human dignity principle and attempts to

protect it. On the social life level, the decent work pursues growth and

development, as the ultimate goal of nations. The right to development, as

one of the components of third generation of human rights, embraces the

rights which provide entitlement of all human people to an equitable proper

share of global property and productive services. Human development can

be viewed as all the processes which lead to development and formation of

human capacities, also makes individual active participation in the

economic growth, feasible. The relation of decent work to the right to

development, especially the matter of human development, is the question

propounded in this research, seeking respond. It is believed that the goals

of decent work can be assessed along human development programs.

I NTRODUCTION............................................................................................ 657I. THE CONCEPT OF DECENT WORK ............................................................ 658

A. Decent Work as the Guarantee of Human Dignity for Individuals ...................................................................................... 659

B. Decent Work as a Development Strategy ....................................... 660II. THIRD GENERATION OF HUMAN R IGHTS AND THE R IGHT TO

DEVELOPMENT ...................................................................................... 660III. THE CONCEPT OF HUMAN DEVELOPMENT............................................. 663IV. THE R ELATION BETWEEN HUMAN DEVELOPMENT AND DECENT

WORK ................................................................................................... 665CONCLUSION ............................................................................................... 668

I NTRODUCTION

While the human history is the messenger of the vast magnificent

heritage of civilization, it also carries calamities as slavery, exploitation

and class differences, made the work synonymous with hardship and

Ph.D., Assistant Professor, Public Law, Faculty of Law, Shahid Beheshti University, Tehran &

Researcher in fields of Labour Law, Social Security law, Financial Law and Economic Public Law.




tribulation, reduced workers to subordinate to the affluent, in other words,

although the vicissitudes of history relate the grandeur of civilization, thedomineering “wealth” confrontation with “work” recounts the decline of

human dignity and esteem. Today, “social justice” and human dignity,

among other utopian concepts, have prepossessed public opinion on

national and international levels. By the end of 1990s, International Labor

Organization (ILO) endeavored to protect fundamental work rights and

assist countries to provide conditions of decent work, consequently, the

Declaration on Fundamental Rights and Principles at Work 1

in 1998 and

Decent Work Agenda2

were adopted in 1999 during 87th session of

International Labor Conference.The diverse dimensions of economic, social, political and cultural

development, as the guarantees of human growth and advancement, stressed

through the adoption of the 1986 UN declaration,3

were extended into work

sphere and related political freedoms during next decade. Decent work,

according to Director-General of International Labor Organization (ILO) in

2001 regional meeting, ensures human dignity for all, everywhere.

Part I of this paper explains the concept of decent work, both as the

Guarantee of Human Dignity for Individuals and a Development Strategy in

international labour domain. Part II examines the relations between third-generation of human rights, or the so-called rights of solidarity, and the

right to development. Part III investigates the concept of human

development and its two dimensions which, on one hand, stress on

formation of human capabilities through investment in human resource, and

on the other hand, address the utilization of human developed capabilities

through establishing a framework for participation in employment and

income growth. Finally, part IV explains the relation between human

development and decent work.

I. THE CONCEPT OF DECENT WORK

The concept of decent work was introduced for the first time by Mr.

Juan Somavia, Director-General of ILO, in his report to International Labor

Conference meeting in its 87th session in June 1999, held in Geneva,

Switzerland. As was suggested by him, “the primary goal of the ILO”, in the

era of global transformation, “is to promote opportunities for women and

1 ILO Declaration on Fundamental Principles and Rights at Work, adopted by the International Labor

Conference at its 86th Session, Geneva, June 18, 1998.2 Decent Work Agenda, available at http://www.ilo.org/global/about-the-ilo/decent-work-

agenda/lang--en/index.htm (Last visited: July 24,, 2011).3 Declaration On The Right to Development.



2011 DECENT WORK 659

men” everywhere.4

Four components of the notion are elaborated in the

Report of the Director-General: promotion of fundamental rights at work,employment, social protection and social dialogue. It was also indicated that

“The primary goal of the ILO today is to promote opportunities for women

and men to obtain decent and productive work, in conditions of freedom,

equality, security and human dignity”. Therefore, through the description

given on decent work, it can be concisely defined as a productive work

which in addition to inclusion of fundamental rights components,5

provides

propitious conditions of social protection and social dialogue in which

respect to fundamental human rights as freedom, equality, security and

human dignity would be realized.In addition to the abovementioned report of the Director-General of

ILO, to elucidate the concept of decent work, attention should be paid to

other descriptions and features of the concept in different international and

regional instruments and forums. The following sections will exemplify

other definitions.

A. Decent Work as the Guarantee of Human Dignity for Individuals

In the regional meeting (August, 2001) on how creating policies for

“decent work” Director-General of ILO elaborated the notion of the decentwork, as follows:

“[Decent work] is about your job and future prospects; about your

working conditions; about balancing work and family life, putting your kids

through school or getting them out of child labor. It is about gender equality,

equal recognition, and enabling women to make choices and take control of

their lives. It is about your personal abilities to compete in the market place,

keep up with new technological skills and remain healthy. It is about

developing your entrepreneurial skills, about receiving a fair share of the

wealth that you have helped to create and not being discriminated against; itis about having a voice in your workplace and your community. In the most

extreme situations it is about moving from subsistence to existence. For

many, it is the primary route out of poverty. For many more, it is about

realizing personal aspirations in their daily existence and about solidarity

with others. And everywhere, and for everybody, decent work is about

4 Decent Work5 ( International Labor Office, First Pub, 1999).5 In conformity with the ILO Declaration on Fundamental Principles and Rights at Work, “the

principles concerning the fundamental rights which are the subject of those Conventions, namely: (a)freedom of association and the effective recognition of the right to collective bargaining; (b) the

elimination of all forms of forced or compulsory labor; (c) the effective abolition of child labor; and(d) the elimination of discrimination in respect of employment and occupation.




securing human dignity.”

B. Decent Work as a Development Strategy

While it seems appropriate to consider all the above mentioned

explanations are addressing to the personal life of individuals, Director-

General of ILO regarded decent work as a development strategy. The

Director-General construed the decent work as follow:

Decent work is a development strategy. It is a goal not a standard. It does

not offer a “one size fits all” solution. It is a personal goal for individuals and

families and a development goal for countries.

Moreover, in the 2001 meeting, the Director-General referred to the

conditions detrimental to decent work:

— There is involuntary unemployment and poverty;

— There are abuses of rights at work and forced and child labor exists, and

discrimination is practiced;

— Basic income security is missing and workplace anxiety, depression and

exhaustion are commonplace;

— Workers and employers are either not organized to make their voice heard, or

face obstacles to effective dialogue;

— Life at work cannot be properly balanced with the claims of the family.6

II. THIRD GENERATION OF HUMAN R IGHTS

AND THE R IGHT TO DEVELOPMENT

In response to the present circumstances and new demands, third

generation of human rights, or the so-called rights of solidarity, was

introduced accompanied by universally extension of international human

rights law. In other words, third generation, as the combination of modern

law with legal issues concerning first and second generations was propounded in the twentieth century. It is believed that Article 28 of

Universal Declaration of Human Rights7

has provided the main ground for

the deep concentration on third generation rights. The rights-based approach

to development, set forth by solidarity rights, has furnished an appropriate

ethical basis for action against poverty which leads to protection of the poor

in the course of efforts to reach social justice, because poverty is the evident

6 Somavia Juan, Director General, s inaugural address to the 13th Asian Regional meeting, August2001.7 Article 28 of Universal Declaration of Human Rights reads: “Everyone is entitled to a social andinternational order in which the rights and freedoms set forth in this Declaration can be fully realized”.




evidence of disregard for a great part of human rights. The first generation

of civil and political rights are based on the principle of liberty, while thesecond generation of economic, social and cultural rights are based on the

principle of equality and the third generation of rights of solidarity are based

on the principle of fraternity. All the three notions are enshrined in Article 1

of Universal Declaration of Human Rights, as follows: “All human beings

are born free (liberty) and equal in dignity and rights (equality). They are

endowed with reason and conscience and should act towards one another in

a spirit of brotherhood (fraternity)”.

According to what is regarded to be solidarity rights in Draft of the

third International Human Rights Covenant (1982), United Nations 1986Declaration on the Right to Development and the final declaration of World

Conference on Human Rights, 14-25 June 1993, Vienna, third generation of

human rights include the right to peace, the right to healthy and balanced

environment, the right to common heritage of mankind, Right to

communicate and the right to humanitarian assistance as the universal

common values.

The justiciability of the first generation of civil and political rights is

their distinctive characteristic, which presupposes a duty of non-interference

on the part of government towards individuals (such as non-infringement of the right to assemble). Claim ability can be regarded as the characteristic of

the second generation of economic, social and cultural rights which require

affirmative government action for their realization. In contrast with first and

second generation rights, the distinctive characteristic of the third generation

of human rights is their justicibility and claim ability. Moreover, solidarity

rights only can be realized through participation of all individuals,

governments, public and private organizations and international

community.8

As mentioned here, the right to development is a component of

the third generation of human rights. According to the human rights draft

prepared by the International Foundation for Human Rights, the right to

development provides for the enjoyment of all human people, women and

men, in a fair and proportionate share of property and productive services of

global community.9

The governments share in realization of the right to

development and individual aspect of it has been noticed in this definition.

In addition, the national and international correlation is regarded as the basis

of the development principle and the justice as the final goal of the

8 Amir-Arjomand, Ardeshir, Protection of Environment and International Solidarity, JOURNAL OF

LEGAL STUDIES, Law Faculty of Shahid Beheshti University, No. 15, at 328.9 MOLAEI YOUSEF, THE RIGHT TO DEVELOPMENT AND UNIVERSITY OF HUMAN RIGHTS 93(Majd Law Publishing 2002).




development. Anyway, it is the human as the pillar and ultimate goal of the

development. The development is generally considered as a collection of social, economic, political, cultural and intellectual transitions which lead to

comprehensive development of abilities and capacities of the society.

Therefore, Development is a complicated process which is shaping to

improve human life, by human, for human.

In 4 December 1986, in the “Declaration on the Right to Development”,

adopted by the United Nations General Assembly resolution 41/128, the

new approach to right to development was proclaimed. The Declaration on

the Right to Development includes a preamble and 10 Articles. Article 1 of

the Declaration states: “The right to development is an inalienable humanright by virtue of which every human person and all peoples are entitled to

participate in, contribute to, and enjoy economic, social, cultural and

political development, in which all human rights and fundamental freedoms

can be fully realized”. Article 2 introduces the human person as the central

subject of development and stresses on the right and the duty of states to

formulate appropriate national development policies.

In the World Conference on Human Rights (1993), the right to

development was reaffirmed as a universal and inalienable right and an

integral part of fundamental human rights.According to the UN Secretary General, real and sustainable

development only can be achieved through full respect for political,

economic and social rights of all people. It helps to establish the social

balance which is required to transform society into vital peaceful situation.

The right to development is a criterion to measure the respect for other

human rights. Our goal should be establishment of situations in which

everyone can maximize their potential abilities and participate in the

evolution course of society.10

Therefore, the right to development can be considered as the

recognition of the right to equitable enjoyment of all people in material and

intellectual resources and assets which are in the possession of the global

community, including food, education, health, housing, art, freedom,

security, other necessities and preparations which make the human survival

and their material and spiritual prosperity feasible. Consequently, the right

to development is an inalienable part of the right to life and they are

considered to be interdependent.

Contrary to the past in which physical capital was considered the

stimulus of economic development, human capital, according to the new

10 Human Rights in Contemporary World , in Center for Graduate International Studies of Law andPolitical Science Faculty of Tehran University 23 (2000).




theories of development, is deemed the central hub of development, which

provides the requirements of sustainable development and growth in societies.In 1998, UNDP policy document on “Integrating Human Rights with

Sustainable Human Development” was adopted. Some of the subjects of the

document are as follows: development of a human rights approach to

sustainable human development, human rights effects on sustainable human

development and implementation of the human rights approach of UNDP.

In the next section, the subject of human development is analyzed in

detail through stressing on the human person as the central subject of

development and considering the process of economic globalization,

especially its negative effects such as poverty.

III. THE CONCEPT OF HUMAN DEVELOPMENT

Human development is defined as a process whereby human

capabilities can be formed and developed, while simultaneously, the

requirements for active participation of individual can be also attainable.

Under the concept of human development, human person is located in the

centre of development paradigm, not on the brink.11

Two dimensions of Human development, on one hand, stress on

formation of human capabilities through investment in human resource, andon the other hand, address the utilization of human developed capabilities

through establishing a framework for participation in employment and

income growth. Human person as the central subject of development and the

pursuit of principal goals such as equitable access to economic opportunities

are regarded as the main purport of the human development idea. In the

process of formulation of development policies and programs, human

person and elevation of human capabilities should be regarded as the main

subject of development. Sustainable development has been considered as

the main subject of UNDP Development Reports since 1990. Therefore,human development is about enriching human lives as a goal, not a means.

Finally, sustainable development contributes to human living and higher

level of wellbeing and human development is a process by which human

capabilities to a healthy long life, educational training and a decent standard

of living can be developed. Naturally, values such as political freedoms and

human rights also would be attained by realization of human development

goals. Although, quantitative economic indicators like Gross Domestic

11 For more information see GRIFFIN, K EITH B & MCK INLEY, TERRY, IMPLEMENTING A HUMAN

DEVELOPMENT STEATEGY, Khajehpour, Gholamreza (Social Security Research Institute Press,Tehran, 1996).




Product (GDP), per capita income, etc.… has been regarded as the criterion

of national development and growth, since 1990, concerning deficiencies of quantitative economic indicators, United Nations (UN) has introduced

Human Development Index (HDI) as a composite measure of achievements

in three basic dimensions of human development—a long and healthy life,

access to education and a decent standard of living. Human development

can be properly assessed by its basic dimensions-life expectancy, education,

Gross Domestic Product (GDP).12

Some experts believe that efficiency, equity, sustainability and

empowerment are considered most central to human development.13

Efficiency

is defined as a cost-effective method of reaching goals through optimal useof resources which normally leads to improvement of human resources and

increase of Gross Domestic Product (GDP). Economic growth is described

as a means toward enhanced human development and generally, the

importance of efficiency for increase of national welfare is accepted.

Therefore, efficiency, by itself, is the source of economic growth, social

development and ultimately leads to the improvement of living standards

and human development. Equity means equality of opportunities which

along with elimination of unequal economic opportunities would lead to

public participation and equal access to resources. Sustainability is definedas a process of maintaining or improving physical, environmental and

human resources for the present and future generations. Empowerment

refers to the process that leads people to fully participate in their lives

related decision-making and policy-setting, therefore, creativity of people

should be increased through development of their capabilities to reorganize

them as the effective factors for change.14

It is noteworthy that human development is different from human

resource development. Human development has a broader meaning, while

human resource development is related to human resource in workforce

management sphere. In this sphere, first, managers recognize the

educational needs of their human resources and determine their career

advancement course, then allocate the required resources for training

programs to improve occupational skills of their employees and organize the

12 According to the United Nations’ Report on 2010 Human Development Index (HDI), in 2010, Iran,among 169 countries, has ranked 70th, improving 18 degrees over the last year, the report read. The

UNDP placed Norway, Australia and New Zealand at the top and Niger, the Democratic Republic of

the Congo and Zimbabwe at the bottom, with Western countries again leading the list while sub-

Saharan African nations trailing at the bottom, http://hdr.undp.org/en/data/trends/1980-2010/.13 Cited in: Falahati, Maryam, Human Development and Decent Work , WORK AND SOCIETY

MAGAZINE, July-August 2006, at 73, 74.14 Ibid.




framework of human resource management through appropriate monitoring

and evaluation of training results.One of the key concepts propounded in relation to development

strategy is the formation of human capital. Human capital mainly includes

labor force of a society. There is, of course, such a force in every society,

but, the important issue is how to use these forces which in practice lead to

evident distinction between developed and developing countries, because

the mere existence of labor force can not be considered as human capital.

In fact, professional and healthy work forces form the human capital of

every society.15

The method of using labor force is far more important than theexistence of such a force, because, undoubtedly, there are people in every

society capable of working in industry, agriculture, production of goods and

services. In contemporary world, the capability of work force is not the main

issue, but the methods of using potentials and activating work force

capabilities are of importance. In fact, labor force becomes capital when

there is investment made in form of education and training. In order to

prosper human resource, like other social sectors, there should be

enforceable rules and principals. These standards (rules and principles)

adjust human force management to public order and expediency. In thiscontext, the importance of labor law standards becomes more obvious;

because investment in human resource will leads to prosperous results if the

laws are complied.

IV. THE R ELATION BETWEEN HUMAN DEVELOPMENT AND DECENT WORK

The decent work paradigm, as one of the modern labor standards, that

considered of importance in work relations, dates back to 1999 and the

report of ILO Director-General to 87th

session of International Labor Conference.

As mentioned above, decent work concept is defined as equal

opportunities for proper and productive work along with freedom, security,

equality and human dignity. Four strategic approaches to realization of

decent work goals involve promotion of fundamental rights at work,

employment, social protection and social dialogue.

From the perspective of citizenship rights, decent work can be regarded

as a proper and appropriate response to natural and inherent demands of

15 See Davari Ahmad, Development of Human Resources and Administrative Order , Presented in“DEVELOPMENT OF ADMINISTRATIVE SYSTEM” CONFERENCE, Tehran, 2000.




individuals who try to meet their social and economic needs through

participation in social and political affairs of the government system.Decent work means productive work which guarantees rights at work.

Also, it is defined as appropriate employment which involves equality of

work opportunities for all women and men.

Decent work marks the high road to economic and social development, a

road in which employment, income and social protection can be achieved without

compromising workers' rights and social standards. Tripartism and social

dialogue are both objectives in their own right, guaranteeing participation and

democratic process, and a means of achieving all the other strategic objectives of

the ILO. The evolving global economy offers opportunities from which all can

gain, but these have to be grounded in participatory social institutions if they are

to confer legitimacy and sustainability on economic and social policies.16

The ILO has made a major contribution to the promotion of human

rights at work which was reiterated in the Report of the Director-General

(1999). In this regard, ILO has three priorities, as follows:

(1) To promote the Declaration on Fundamental Principles and Rights

at Work and its Follow-up,

(2) To step up the struggle to eliminate child labor,

(3) To renew its work on ILO standards.In all cases, the aim is to promote development with human dignity and

social justice. In response to the first priority, ILO adopted the Declaration

on Fundamental Principles and Rights at Work and its Follow-up in 1998.

The Declaration is a pledge to respect, promote and realize in good faith the

principles and rights relating to freedom of association and the recognition

of the right to collective bargaining; the elimination of all forms of forced or

compulsory labor; the abolition of child labor; and the elimination of

discrimination in respect of employment and occupation. Unlike an

international labor Convention, which binds only Members that ratify it, theDeclaration applies automatically to all countries that have accepted the ILO

Constitution, whether or not they have ratified the fundamental Conventions

of the ILO.

The Declaration mandates the ILO to encourage other international

organizations with which it has established relations to help create a climate

for economic and social development that respects fundamental principles

and rights at work.

With respect to the second priority of ILO, the Director-General

reminded that the Child labor is a pressing social, economic and human

16 Report of the Director General to International Labor Conference, 87th session, 1999.




rights issue. As many as 250 million children worldwide are thought to be

working, deprived of adequate education, good health and basic freedoms.Then, he referred to the principles of elimination of child labor and

proposed InFocus Programs for promoting development by providing

adequate educational alternatives for children and access to decent work,

sufficient income and security for their parents.

Other section of the Report on “Development and the Elimination of

Child Labor” states: “Ending child labor is a goal in itself; but it is also a

powerful way of promoting economic and human development. Eliminating

child labor will permit more investment in human capability, promote the

ideals of decent and dignified work, and help alleviate poverty. Conversely,development increases household incomes, promotes better access to

education and creates decent work for adult family members, thus in turn

helping to eliminate child labor”.17

With regard to “renewing work on labor standards”, as the third

priority, it was stated in the Report that: “Of the 23 Conventions and two

Protocols adopted in the 15 years from 1983 to 1998, only three have

received at least 20 ratifications. Even when ratified, many Conventions

are only weakly implemented. If the ILO is to ensure its continued

relevance in this field and reassert the usefulness of internationalstandards, it will need to reinvigorate its efforts and experiment with new

approaches”. Then, in the Report “a number of actions” that “are

necessary to raise the profile and increase the relevance of the ILO’s

work on standards” are set down, as follows: preparing the ground for

new standards more thoroughly; exploring new methods of standard

setting; engaging in deeper analysis of existing standards, their synergy,

lacunae, and impact on various groups; accelerating the revision of

outdated instruments to build on progress already made and promoting priority standards as problem-solving tools; enhancing the impact of the

supervision of standards, etc.18

It is noteworthy that, though, the right to work and its related standards

has been considered from the perspective of the second generation of human

rights (social, economic and cultural rights) until now, but at present, the

issue should be examined from the perspective of the third generation of

human rights, especially the right to development, so it is more appropriate

to analyze and evaluate the ILO’s effort to establish a new approach in field

17 Ibid .18 Ibid.




of employment, namely the decent work.

CONCLUSION

The first Article of Universal Declaration of Human Rights affirms the

principles of liberty, equality and fraternity, as the fundamental human

rights in personal and social situations. These principles are introduced

within the framework of the tripartite generations of human rights. The right

to development is regarded as an instance of the third generation of human

rights. Although, until now, the right to work and all the other fundamental

rights and freedoms have been considered as subcategories of the second

generation of social, economic and cultural rights, in this paper, we tried to

describe and corroborate the relation between the concept of decent work

with the third generation of human rights, especially the right to development.

The recognition of the right to development, as the equitable enjoyment

of all human people in material and intellectual resources and assets which

are in the possession of the global community, including education, health,

especially work, and the acceptance of human development, as the process

of development and formation of human capacities which makes individual

active participation in the economic growth, feasible, along with explaining

a fresh concept for the decent work and its related indices and components,

are all considered, in this paper, to be a new approach to the issue of work in

an appropriate situation.




to the gathering of evidence is exemplified by the process of using and

eliciting a witness’s evidence. In France, witnesses are distrusted as a sourceof evidence. They are in general excluded from contractual litigation assource of evidence.4 Further, the responsibility for calling and questioningwitnesses when they are allowed lies with the judge, whilst the parties’counsel mainly nominates possible witnesses and suggests questions thatsupplement those of the judge. In the common law tradition, conversely,witnesses are the main source of evidence; in fact other evidence normallyrequires authentication, a process that requires the use of witnesses unless parties (or, exceptionally, statutory provisions) stipulate otherwise. Further,

each side calls and interrogates its own witnesses and cross-examines thosecalled by the other.Each model reflects its own particular assumptions in the way that it

allocates the responsibility for evidence-gathering. Nevertheless, bothmodels share some important underlying assumptions. For instance, A. A. S.Zuckerman argues that one can take for granted that all systems of procedure seek to achieve “rectitude of decision”5 simply because “[a] procedure in which the courts do not even try to get at the truth is manifestlyan unjust procedure, because it fails in its main task”6. Further, as a means

to advance rectitude of decision, arguably both systems rely on the parties’autonomy and freedom to present their factual allegations and to set thelimits of their dispute through pleadings. This autonomy and freedom of parties presupposes that the most persuasive factual contention and reliableevidence available are likely to be submitted for the consideration of thecourt. It is therefore perplexing for a common law audience to learn thatcontractual litigation in the civil law system disfavours or even bansaltogether the use of witnesses as a source of evidence. Any conclusionabout which model more effectively achieves rectitude of decision is likely

juge moderne peut impartir des délais pour conclure, délivrer des injonctions aux parties d’avoir àcommuniquer ou a produire certaines pièces.”) [The case management of civil procedure is no longer left to the discretion of the parties as it used to be: the modern judge has got powers to delay the procedure, to command a party to disclose or to produce certain documents] (author’s translation); see also JOHN BELL, SOPHIE BOYRON & SIMON WHITTAKER , PRINCIPLES OF FRENCH LAW 79-84 (1998).4 See CODE CIVIL [C. CIV.] art. 1341 (Fr.). This rule is explained and discussed further below, see textafter note 18.5 Rectitude of decision means the right application of the law to the true facts without excessive costand delay. JEREMY BENTHAM, R ATIONALE OF JUDICIAL EVIDENCE SPECIALLY APPLIED TO E NGLISH

PRACTICE 34 (John Stuart Mill ed., 1827). Bentham had an important influence in the law of judicial procedure of both common and civil law models. See Gerald J. Postema, The Principle of Utility and

the Law of Procedure: Bentham’s Theory of Adjudication, 11 GA. L. R EV. 1393 (1977).6 See ADRIAN A. S. ZUCKERMAN, CIVIL JUSTICE I N CRISIS: COMPARATIVE PERSPECTIVES OF CIVIL

PROCEDURE 3-10 (1999); see also MICHAEL D. BAYLES, PROCEDURAL JUSTICE: ALLOCATING TO

I NDIVIDUALS 115-117 (1990).



2011 COMMON AND CIVIL LAW SYSTEMS 671

to reflect a cultural bias rather than a tested hypothesis. It is clear, however,

that in order to work effectively both systems must procure that thedetermination of contested facts has some basis in evidence.This article presents a comparative approach between common and

civil law systems, towards an appreciation of the fundamental similaritiesconcerning the use of evidence in order to determine contested facts andachieve (or attempt to achieve) rectitude of decision. The comparison purports to follow the principle of functionality in comparative legalresearch. This means that the analysis of the use of evidence should be freeof “[its] conceptual context and stripped of … [its] national doctrinal

overtones,”

7

so that different means and rules of evidence are analysed inthe light of their functions to satisfy the common legal needs of the jurisdictions concerned. The comparison focuses on an appreciation of howevidence is used to resolve similar procedural needs. In situations wheredifferent means are used, the paper looks at the reasons for such differentapproaches, and considers whether the different means are indeed functionalequivalents or not. It is hoped that this appreciation may help to understand better the differences, which have often distinguished these proceduralmodels.

Section I analyses the fundamental similarities identified between the procedural systems under study. It therefore focuses on exclusionary rules, jurisdiction by jurisdiction, and considers its evidentiary impact on theachievement of rectitude of decision as defined by Bentham. Section IIexamines the differences. It shows that relevance is epistemologically perceived differently, particularly in relation to the weight of evidence andexplains why this is so by considering the civil law system’s aversion tousing witnesses.

It is hoped that this comparative approach may achieve two goals.Firstly, it may help to appreciate similarities that pervade both systems inthe way in which they deal with similar legal problems. Secondly, it ishoped that this understanding may pave the way for an approximation of legal systems.

I. THE EXCLUSIONARY R ULES

A functional approach requires identification of common grounds tosatisfy similar legal needs.8 In this regard the use of evidence is common to

7 K ZWEIGERT A ND H K ÖTZ, I NTRODUCTION TO COMPARATIVE LAW 44 (T Weir trans., 3rd ed.Clarendon Press Oxford 1998).8 Id .




both to deal with factual uncertainty in the legal process. In fact, common

law scholars argue that “in giving evidence we are furnishing to a tribunal anew basis for reasoning … [evidence] imports something put forward in acourt of justice”9; similarly to French scholars: “tout procedé employé pour convaincre le juge de la vérité d’un fait”10. In this sense, evidence presentsitself as a common means in both systems with which to satisfy commonlegal needs: namely to deal with factual uncertainty in order to achieverectitude of decision.

A. The Exclusionary Solution

Without setting a hierarchy of evidence from the best to the worst, bothcommon and civil law agree in distrusting witnesses more than documentsfor numerous reasons. The most fundamental reason has historically been perjury and subordination of perjury, illustrated by the Act for thePrevention of Frauds and Perjuries 1677 (UK)11 and the Ordonnance sur laRéforme de la Justice 1566 (Fr).12

The civil model solution, inspired by French law, has been to excludewitness testimony as a means of evidence in contract litigation. Therequirement of pre-appointed documentary evidence of some kind to prove

contracts illustrates this distrust, along with the exclusionary mechanism of banning the use of witness testimony (unless there is some kind of documentary evidence) in contract litigation.13

The common law has also distrusted witnesses, but the solution focusesfirst on the use of securities to test the untrustworthiness of evidence, andthen, eventually on the exclusion of untrustworthy evidence that could not be tested. For instance, witnesses are tested through oath, cross-examination,

9 J.B. Thayer, A PRELIMINARY TREATISE ON EVIDENCE AT THE COMMON LAW 264 (Little Brown

Boston, 1898).10 M Planiol and G Ripert, Traité Elémentaire de Droit Civil Conforme au Programme Officiel desFacultés De Droit [350] (11th edn Librairie Générale de Droit et de Jurisprudence Paris 1928).11 29 C 2 c 3 (short title ‘Statute of Frauds’ given in Short Title Act 1896 (UK) 59 and 60 Vict c 14sch 1). 12 14 R ECUEIL GÉNÉRAL DES A NCIENNES LOIS FRANÇAISES DEPUIS L’AN 420 JUSQU’À LA R ÉVOLUTION

DE 1789 (FA Isambert, Decrusy and AJL Jourdan eds., Librairie de Plon Frère Paris 1822) vol 14, at189-212. Cf . E Rabel, The Statute of Frauds and Comparative Legal History, 63 LQR 174, 174-8(1947) (arguing that the Ordonnance sur la Réforme de la Justice 1566 (Fr) and the Ordonnance Civilde la Justice 1667 (Fr) were the models or possible inspiration for the Statute of Frauds in England).Contrast MRT MACNAIR , THE LAW OF PROOF IN EARLY MODERN EQUITY 164 (Duncker and HumblotBerlin 1999) (arguing that the Statute of Frauds may be regarded as carrying rules developed in equity

into the common law).13 CODE CIVIL[COD. CIV.] art. 1341 (Fr.). See for a general discussion on this rule R LEGEAIS, LES

R ÈGLES DE PREUVE EN DROIT CIVIL “PERMANENCES ET TRANSFORMATIONS” [x] (R Pichon and R Durand-Auzias Paris 1955).




and direct and public assessment. The evidence that passes the test is

considered trustworthy evidence, upon which the fact finder may safely basea judgment. If the evidence is, however, unavailable to pass the test, then itstrustworthiness cannot be tested. It is then that rules often, though notalways, exclude second hand evidence. The hearsay rule illustrates thisdistrust and also the exclusionary mechanism of dealing with this problem.

B. Common Solution

These illustrations highlight that untrustworthy evidence is distrustedand, where possible, excluded by both systems. If all evidence is inherentlyuntrustworthy, the question remains what makes evidence so untrustworthyin order to exclude it rather than deal with its untrustworthiness in the usualway as a matter of weight rather than admissibility. Some light may be shedon our inquiry by the following examples. In Myers v DPP

14 the prosecutionintended to prove that certain cars were stolen (by the defendants) byshowing the discrepancy between the numbers from the wrecks (whichcould be changed) and the match of the numbers casted into the cylinder block (which could not be changed). During the manufacturing process of the car, all numbers were written on cards, which were microfilmed. The

prosecution sought to introduce these cards. The trial court (as confirmed bythe House of Lord later) excluded the cards for being hearsay that (at thattime) did not fall within any recognised exception.15 Lord Reid explained:“[T]he reason why this evidence [cards] is maintained to have beeninadmissible is that its cogency depends on hearsay.”16 In other words, inthat case, it could not be proved that the cards were correct or that thenumbers that the cards contained were in fact the numbers on the car whenthey were made. In essence, the House of Lords meant that rejection of thecards on the grounds of hearsay called for the admission of the testimonies

of the operators that entered the numbers on the cards and saw the cars onthe production line.17 But this argument overlooks that if these operatorscould have been identified in order to put them under oath and cross-examine them, the most they could have given testimony about was the process they witnessed, i.e., they could not have given testimony withregard to just one out of many hundreds of thousands of cards filled outeach year. It is evident that the cards, once authenticated, albeit as hearsay,

14 [1965] AC 1001 (HL) (UK).15 Id . at 1024 (Lord Reid).16 Id. at 1019.17 Id. at 1035-7 (Lord Pearce).




were more reliable evidence than testimonies of the operators. The rule

against hearsay is therefore not necessarily, in this situation, excluding themore untrustworthy evidence.18 It is, instead, addressing the risk that thefact finder may attach too much probative force to such evidence. It issubmitted that this is what justifies the hearsay exclusion in thesecircumstances, regardless of the relevance of the underlying evidence.

In France, similar logic may be applied to the following example of arule of exclusion that can be found in article 1341 of French Civil Code:

Il doit être passé acte devant notaires ou sous signatures privées de touteschoses excédant une somme ou une valeur fixée par décret, même pour dépôts

volontaires, et il n'est reçu aucune preuve par témoins contre et outre le contenuaux actes, ni sur ce qui serait allégué avoir été dit avant, lors ou depuis lesactes, encore qu'il s'agisse d'une somme ou valeur moindre.

Le tout sans préjudice de ce qui est prescrit dans les lois relatives aucommerce.19

Two legal consequences arise from this article: a duty to pre-appointwritten evidence and an affirmative rule of exclusion. The pre-constitutionof evidence rule is a substantive law requirement that aims at theidentification and inalterability of the transaction. 20 The former aims at

identifying the parties and the terms of a contract. The latter is intended to protect litigants from the difficulty of finding facts in the event of litigation, by having a durable and trustworthy record of the transaction. This rule hasevolved as a fundamental principle of contract law, whereby substantive law prefers documents as evidence of transactions, for reasons that are beyondthe scope of this article. The failure to satisfy this requirement, however,does not affect the validity, but rather, the enforceability of the contract.21 Finally, the duty is not absolute and the law establishes situations where it

18 In United States, under the records of regularly conducted activity exception, FRE 803(6), the cardswould have been admitted. In England, the same solution currently applies in a civil dispute, as therule against hearsay has been abolished in civil proceedings. Civil Evidence Act 1995 (UK) c 38 s 1.The illustration has been given with a theoretical purpose in order to illustrate the negative effect of the exclusionary rule.19 The source of this rule is art 54 of the Ordonnance sur la Réforme de la Justice 1566 (Fr). 14R ECUEIL GÉNÉRAL DES A NCIENNES LOIS FRANÇAISES DEPUIS L’AN 420 JUSQU’À LA R ÉVOLUTION DE

1789 203 (FA Isambert, Decrusy and AJL Jourdan eds., Librairie de Plon Frère Paris 1822).20 Legeais, supra note 13, at 55.21 Cass 3e CIV June 26, 1973 [1973] Bull Civ III Nº 444, at 323 (‘[l]'inobservation … du code civiln'entraîne pas la nullité de la convention elle-même, mais prive seulement de sa force probante l'écritconsidère comme moyen de preuve.’). cf SÉNAT DE FRANCE COMMISSION DE LOIS, R APPORT DE LA

COMMISSION DE LOIS SUR LE PROJET DE LOI PORTANT ADAPTATION DU DROIT DE LA PREUVE AUXTECHNOLOGIES DE L’I NFORMATION ET R ELATIF À LA SIGNATURE ELECTRONIQUE (Sénat Rapport (1999-2000) Nº 203) <http://www.senat.fr/rap/l99-203/l99-203.html> (25 July 2011) [thereinafter ‘Rapportde la Commission de Lois 203/1999-2000’].




does not apply, e.g., there is no duty to pre-appoint evidence regarding

commercial contracts,

22

quasi-contractual situations and civil or criminaltort cases, 23or civil contracts where their value is less than 800 Euros.24 As a matter of law of evidence, article 1341 is an affirmative rule of

exclusion because it excludes, in the case of litigation, extrinsic evidence toan agreement, regardless of whether a written version of the agreementexists. This means that in cases of litigation, other evidence, apart from adocument, is inadmissible. This limit to general admissibility is consideredone of the foundations of the French system of evidence in contractlitigation. The following is an example of this exclusionary rule in operation:

[Q] u’il incombait à M. Perroy, qui soutenait avoir acquis le véhiculelitigieux en commun avec M. Bro, de rapporter la preuve, conformément auxarticles 1341 et suivants du Code civil, de la convention d'indivision qu'il aurait

passée avec ce dernier; qu’ayant constaté que ce véhicule avait une valeur excédant 5 000 francs, la cour d'appel a décidé, à bon droit, qu'en l'absence decommencement de preuve par écrit la preuve par témoins ou par présomptions ne

pouvait pas être admise.25

From the point of view of evidence law, the rationale that could explainthe rejection of testimonial evidence is that the proposing party, Perroy, may

deceive the court by submitting witnesses to support a fake claim. Thisargument appears sound, but it does overlook the fact that the opposing party, Bro, could also be raising a fake defence. If this were the case, Browould be allowed to win, merely by exercising his right to deny Perroy’sclaim. Bro’s false claim, worthy of exclusion, could prevent Perroy from proving his claim by invoking the exclusionary rule and thereby treating theclaimants unfairly. Further, this decision is, at first sight, bewildering for acommon law lawyer as it excludes the most common means of proof used incommon law systems. However, the underlying reason why the witnesses’

evidence is inadmissible, regardless of the relevance of their testimony tosolving the dispute, is related to the risk that the judge might be deceived asa consequence of such witnesses plotting against the defendant.

These examples show that an exclusionary solution actually exists on both sides of the Channel, and their rationale appears to derive from similar grounds: risks associated with the skill of the fact finder to assess certaintypes of relevant evidence. The systems therefore share a common remedy

22 CODE CIVIL[COD. CIV.]art. 1341 (Fr.) last para and CODE DE COMMERCE[COD. COM.] art. 110-3(former art. 109) (Fr.).

23 CODE CIVIL[COD. CIV.]art. 1348 (Fr.).24 CODE CIVIL[COD. CIV.]art. 1341 (Fr.) and Décret Nº 2001-476 (May 30, 2001) (Fr.) art. 1 in JOJune 3, 2001, at 8886.25 Cass 1e CIV, December 3, 1996 [1996] Bull Civ I Nº 431, at 301.




This comparative approach has to a certain extent reduced the

contrasting difference to a common problem: the potential to deceive thefact finder with certain types of untrustworthy evidence. This common problem appears to be addressed, in both systems, by a common solution: itsexclusion. The question remains, however, as to whether the exclusionadvances rectitude of decision.

D. The Exclusion of Witnesses’ Testimony 1. Witnesses: An Inefficient Means of Proof?

In order to determine whether the exclusion of relevant evidenceadvances rectitude of decision or not, it is necessary to assess whether thedistortion that is likely to be inflected by admitting relevant evidence whosereliability is difficult to test (or cannot be put to test at all) outweighs the problems generated by its exclusion.

A concern raised in France when the Senate debated and passed a billto incorporate documents on electronic support within the meaning of article1341 of the Civil Code could serve as a starting point in this assessment.The concern then was that, by eliminating the requirement of evidence of

contracts in paper format, parties to a contract would opt for oral agreementsrather than written ones, producing uncertainty in legal relations.28 Settingaside the division between the substantive and evidentiary role of article1341 of the Civil Code, discussed above,29 the evidentiary aspect of theclaim requires further elaboration before addressing the justifiability of theconcern.

One of the fundamental aspects of a comparative approach is to inquireinto the manner in which other systems deal with similar legal problems. ABelgian legal scholar, van Hecke, four decades ago discussed the differing

styles of drafting contracts in civil and common law jurisdictions. 30 He

DE ZACHARIÆ [761] (E Bartin ed., 5th ed Marchal and Billard Paris 1922), compare footnote 14.Contrast Cass 1e civ 17 December 1954 [1955] (Jurisprudence) RDS 255, 256 (rejecting hearsaystatement of what a party said because it would have circumvented the prohibition that a party cannot be witness in his/her case).28 Vaillant, Ministry of Relations with the Parliament, summarised it:” ‘abandonner l’actuel systèmede la preuve … laisserait aux parties la responsabilité de choisir de se préconstituer une preuve ou nonet ainsi de choisir le mode de preuve des conventions qu’elles concluent. La préconstitution de la preuve mérite d’être conservée.’” SENATE OF RANCE, PARLIAMENTARY DEBATES SIGNATURE

ELECTRONIQUE , February 8, 2000,

http://www.senat.fr/seances/s200002/s20000208/sc20000208025.html, (July 25, 2011).29 See supra text after footnote 18.30 GA van Hecke, A Civilian Looks at the Common-Law Lawyer, in I NTERNATIONAL CONTRACTS: CHOICE OF LAW AND LANGUAGE 9-12 (WLM Reese ed., Oceana Publications New York 1962).




being able to choose between both of them, prefer not only written contracts,

but also lengthy and detailed contracts, in order to avoid the use of witnesses, in case litigation arises. The implication of this is that thecommon law system managed to impose the use of written evidence in order to record transactions, the same result that the French legislator purported toachieve, but without excluding witnesses as the French system proudlydoes.37

There is a final criticism to Ministry Vaillant’s claim that the lack of rules imposing evidentiary choice might hamper the accurate determinationof facts in contractual disputes.38 Comparative law as the research of Hecke

and Langbein showed cannot support this claim; furthermore, the claimitself also suffers a theoretical flaw. This is because of the very basic natureof our imperfect procedural systems; namely that no system of procedureconsistently achieves rectitude of decision.39 Moreover, nor is there a test todetermine the factual accuracy of individual judgments. 40 Therefore, theargument that the lack of rules identifying admissible evidence would leadinevitably to less accurate outcomes becomes futile, simply because there isno mechanism to verify the validity of such a conclusion.

2. The Failure of the Exclusionary Solution to Advance Rectitude of Decision

Article 1341 of the French Civil Code, the old interpretation of the bestevidence rule and the rules against hearsay are all examples of rules of exclusion based on a policy choice. In the three examples, the rules indicateto the judge an evidentiary choice, in order to promote the use of morereliable evidence over others, as a means of promoting rectitude of decision.This justification seems to fail to stand a proper scrutiny.

The common law case law has illustrated that it has become

impracticable to construct a hierarchical system specifying a list of morereliable evidence, since different factual situations require differentevidentiary choices. In other words, handling trustworthiness as a matter of admissibility, rather than weight, has provided more problems than solutions.This has made the system move forward towards a solution that favours the

37 European recommendation on abolishing this rule has been rejected by France. SeeRecommendation on Harmonization of Laws relating to the Requirement of Written Proof and theAdmissibility of Reproductions of Documents and Recording on Computers, Footnote 1, COUNCIL OF

EUROPE R ECOMMENDATION R (81) 20 (December 11, 1981).38 See supra note 28.39 J. R AWLS, A THEORY OF JUSTICE 85 (Oxford University Press 1973).40 Zuckerman, supra note 6, at 4.




admission of more relevant evidence by putting emphasis on the fact that

trustworthiness should be handled as a question of weight, rather than of admissibility.41 This distinction is central because weight is a question of fact that the

judge has to consider when all the evidence is produced. Conversely,admissibility is a question of law, primarily determined by relevance. 42 Springsteen v Flute International Ltd illustrates the solution of favouring theadmission of all relevant evidence.43 The case revolved around a copyrightdispute, and the main issue was whether Springsteen had assigned copyrightin writing, as required by section 36 (1) of the Copyright Act 1956 (UK).44

Springsteen could neither produce the original nor any copy of the allegedassignment, but he argued that the court should accept secondary evidenceof the assignment, mainly oral testimony of the solicitor who prepared thecontract. The court allowed the witness to give testimony, holding that:

I do not think it is necessary, in connection with the admissibility of secondary evidence, to consider whether more might have been done by way of searching for the document. … [Provided it] was reasonably thorough, albeitfalling short of what might be considered to be exhaustive.45

The claim that admission of relevant evidence, when its reliability is

difficult to test or cannot be put to test at all, may outweigh the problemsgenerated with its exclusion, appears to weaken theoretically andempirically when it is carefully scrutinised. In common law jurisdictions,the exclusionary rules dealing with this type of evidence have been almostcompletely disregarded by the tendency of modern law towards a broader basis of admissibility provided that the basic requirements of admissibilityare met, i.e., the relevancy test is passed and no other legal cause of exclusions exists.

41 C. TAPPER , CROSS AND TAPPER ON EVIDENCE65 (9th edn Butterworths London 1999).42 Admittedly notwithstanding the distinction between admissibility and weight, the latter may stillaffect the former since the sufficiency aspect of relevance depends upon the potential probativeweight of the evidence offered. Id. and see also AAS ZUCKERMAN, PRINCIPLE OF CRIMINAL EVIDENCE 50-3 (Clarendon Press Oxford 1989).43 [1999] EMLR 180 (Ch) (U.K.).44 4 and 5 Eliz 2 c 74.45 Springsteen, supra note 43, at 212. Cf . R v Governor of Pentonville Prison, ex p Osman [1990] 1WLR 277 (QB) 308 (UK) (arguing that all that remains of the best evidence rule is that if a party hasthe original document and does not produce it without reasonable explanation, the court will infer the

worst) and Kajala v Noble (1982) 75 Cr App R 149 (Div Ct) 152 (UK) (arguing that the best evidencerule no longer applies and courts admit all relevant evidence). This approach has not been different inthe United States. Cf. United States v Marcantoni 590 F 2d 1324 (5th Cir 1979) 1329-1330, certdenied 441 US 937 (1979).




The reasons why the civil law system maintains an inflexible posture to

reconsider the exclusionary solution still needs to be examined andunderstood before one may consider whether transplanting a more flexibleapproach, such as the one of the common law illustrated above, is feasible.The remainder of this article will look into the aversion to using witnesses incontract litigation, arguably one of the most common means of evidence incommon law systems. The reason for choosing this rule is simply because itrefers to one of the most startling differences, regarding the use of evidence, between both models. I submit that no ‘transplant’ is likely to be feasible,regardless of how much it may be needed to advance properly rectitude of

decision, if this difference is not properly comprehended. I would argue thatthe perception of relevance, not just in its legal setting, i.e. logical andsufficiency, but also in its underlying epistemological sense, may help us tounderstand this difference.

II. PERCEPTION OF R ELEVANCE

A. Relevance: The Theory and the Courts

In dealing with proof of facts, relevance is a key element of

admissibility of evidence in both common and civil law systems, eventhough both systems consider relevance, to a certain extent, a conceptforeign to law. The theoretical definition of relevance used in both legalmodels implies that all judicial evidence, which is logically and sufficiently probative (in French pertinent and concluant), is in general admissible.46

In common law, this two-pronged definition of relevance means that,firstly, evidence must be logically probative in order to be considered andthen that ‘the judge ought to consider whether the evidence which it is proposed to adduce is sufficiently substantial , having regard to the purpose

to which it is professedly directed, to make it desirable in the interests of justice that it should be admitted.’(Emphasis added).47 If these two tests are passed, the evidence is admitted unless excluded for other reasons.48 InFrance, this theoretical difference regarding relevance is not foreign to thesystem, 49 but the Court de Cassation has not expressly adopted such a

46 9 C BEUDANT, COURS DE DROIT CIVIL FRANÇAIS [1168] (R Beudant and P Lerebours-Pigeonnièreeds., 2d ed Rousseau & Cie Paris 1953), cf . Thayer; supra note 9, at 264-5. 47 Noor Mohamed v Rex [1949] AC 182 (PC) 192 (Lord du Parcq) (UK).48 Beudant, supra note 46, at [1168] and [1171], Thayer, supra note 9, at 265 and Bentham , supra

note 5, at 34 (arguing that delay, expenses and vexation are grounds for exclusion of evidenceotherwise admissible).49 J Chevallier, Le Contrôle de la Cour de Cassation sur la Pertinence de l’offre de preuve [1956](CHRONIQUE) RDS 37, 37 (1956).




distinction. 50 Hence, the difference in the way relevance is assessed by

courts may arguably lead to the inclusion of evidence deemed irrelevant inAnglo-American courts.51 However, this still falls short of explaining thecivil law system’s aversion to using witnesses in contract litigation.

1. Validating the Use of Evidence

Relevance is a wide concept that can be adapted to different legalsystems, different cultures and different times. For instance, ordeals werearguably means used as a substitute for evidence, even though the MiddleAge user of these mechanisms considered ordeals evidence of a judgmentgiven by God. In that system, ordeals (similar to oath or the result of duels)were believed to be valid means of answering the question, “and so whathappened?” After the judgment of man was substituted for the judgment of God, those irrational mechanisms became irrelevant.

For such a fundamental change to take place, in which judgments werenot given by God through oath, ordeals or duel, but rather by men through judges on the basis of witnesses and documents, a change in the perceptionof evidence must have occurred.52 In other words, if an oath or an ordealwere valid methods with which to ascertain the truth for the users of them in

the early Middle Age, they were not valid any longer by the end of theMiddle Age. This brings to the fore that what relevance of evidence requiresshould be approached from a different angle rather than just its current legalmeaning. Epistemology may help to make sense of this change of perception that validates the use of evidence. I emphasise perception because, as I shall explain below, it will become central to factualdetermination, and therefore central to judgments. If this understanding isaccepted, it appears, then, that relevance is not necessarily an abstractconcept, but rather a relative and tangible one. Moreover, it appears that

relevance is orientated to support the interests of the system that it is serving.

2. Matter of Perception

The famous statement of Lord Hewart illustrates the importance of perception regarding judgments and tribunal impartiality: “[it] is of

50 P. Thieffry, Quelques Aspects Comparés de la Procédure Civile en France et aux Etats Unis, 36 R EVUE I NTERNATIONAL DE DROIT COMPARÉ 783, 816 (1984).

51 Id .52 C. Donahue, Proof by Witnesses in the Church Courts of Medieval England: an Imperfect

Reception of the Learned Law, in O N THE LAWS AND CUSTOMS OF E NGLAND 133 (M Arnold & otherseds., The University of North Carolina Press Chapel Hill 1981) and Thayer, supra note 9, at 264-5.




fundamental importance that justice should not only be done, but should

manifestly and undoubtedly be seen to be done.”

53

This includes not only the right application of the law, but it extendsnecessarily to factual determination, as an undividable part of a judgment asBayles properly argues.54 In other words, factual determination should notonly be as accurate as possible, but it is necessary that parties perceive thatit is probably (within reason) an accurate result.

People v Collins in the United States provides an example of how perception matters.55 In this case, there was no eye-witness capable of identifying the defendants as the persons responsible for the robbery,

although there were a few witnesses capable of describing that the perpetrators were an inter-racial couple driving a yellow car, the man being black with a moustache and the woman being blond with a ponytail. Thedefendants at trial precisely matched these six characteristics. Due to thelack of eye-witnesses capable of identifying the defendants as the perpetrators, the judge admitted an expert in statistics proposed by the prosecution, who was allowed to testify that the likelihood of this match wasone in twelve million. On this evidence, the defendants were found guilty;they appealed the admissibility of this evidence. The court of appeal

reversed the decision and ordered a new trial on the basis that the statisticalevidence lacked an adequate foundation and that “the manner in which the prosecution used it distracted the jury from its proper and requisite functionof weighing the evidence on the issue of guilty”. 56 Setting aside thefoundational gap, properly pointed out by the court, the use of statistics presents a problem with perception.57 The use of eye-witness to identify a

53 R v Sussex Justices, ex p McCarthy [1924] 1 KB 256, 259 (UK). The appearance of justice as afundamental criterion to validate judgments has spread to both common and civil law jurisdictions. cf Tumey v Ohio 273 US 510, 532; 47 S Ct 437, 444 (1927) (USA) (holding that a judge could not try a

case when he had a financial stake without violating the due process clause) and Peters v Kiff 407 US493, 502; 92 S Ct 2163, 2168 (1972) (USA) (holding that “even if there is no showing of factual biasin the tribunal … due process is denied by circumstances that create the likelihood or appearance of bias”). The European Court of Human Rights follows this approach in Borgers v Belgium Series A No 214-B (1993) 15 ECHR 92 [24] (holding that in determining whether fair process has beenviolated it suffices to show circumstances that create the appearance of violation, particularly inrespect of the rights of the defence and the principle of the equality of arms). cf Gautrin and others v France Series A 1998-III 1009 (1999) 28 ECHR 196. The Cour de Cassation in France has followedthis path in Commission des Operations de Bourse v Oury, a decision whose importance ishighlighted by the fact that it was taken by the whole court sat in banc. Cass Ass Plén 5 February1999 [1999] Bull AP No 1 p 1 (Fr.).54 See Bayles, supra note 6, at 116.

55 66 Cal Rptr 497 (USA-California) (1968).56 Id. at 502. 57 C. Nesson, The Evidence or the Event? On Judicial Proof and the Acceptability of Verdict, 98HARVARD LAW R EVIEW 1357, 1378 (1985).




possible criminal is preferred to statistics because, paradoxically, the

precision of the latter interfered with the function of the legal process:Statistical evidence distracts the fact finder.This means that statistical evidence was not disfavoured because of

irrelevancy, but rather due to its mathematical precision. In other words, itwas feared that it would have distorted the value of all the other evidence inthe case. In this sense, statistical evidence is likely to interfere with theweighing-up of the rest of the evidence, amongst which statistics shouldcount as one more piece of circumstantial evidence, but not more (thisargument will be expanded further below). Professor Nesson explained that

although statistical proof suggests a sufficiently high numerical probabilityof liability, the absence of deference-inducing mechanisms in the judicial process is such that the public are unable to view the verdict against thedefendant as a statement about what happened. This, according to Professor Nesson, precludes both acceptance of the verdicts and internalization of theunderlying norms.58 In other words, the fear is that the quantification of the probability of liability or guiltiness is likely to be decided on grounds of the perceived overwhelming strength of the statistics alone, rather than on theweight of all the evidence.59

B. Epistemological Difference

1. Perception and Reality

The problem with perception now becomes evident. If the system’sfoundations rest on the assumption that determination of facts, and therebythe judgment, is a matter of probability, a judgment contrary to statisticalevidence, e.g., against one in twelve million, appears to put the wholesystem at odds. This result is, however, caused by the perception of the

relevancy of the statistical evidence, rather than the evidential strength of the statistical evidence itself.60

Firstly, statistical evidence is not direct evidence, but is merelycircumstantial evidence inviting the fact finder to infer that the defendants

58 Id. at 1366-7. See also L.H. Tribe, Trial by Mathematics: Precision and Ritual in the Legal Process,84 HARVARD LAW R EVIEW 1329, 1350 (1971) (arguing that although the use of mathematicalevidence, e.g. statistics, is appropriate for the enhancement of the determination of past events “when properly combined with other, more conventional, evidence in the same case,” the difficulty lies infinding an acceptable way of combining both-mathematical and non-mathematical-without

conflicting with other procedural values).59 Tribe, supra note 58, at 1371.60 Id. at 1359 (arguing that the usefulness of statistics in factual determination is exaggerated and thatthis exaggeration may likely lead to inaccurate conclusions).




are likely to be the perpetrators, from the statistical fact that the chances of

the six characteristics matching were one in twelve million. Secondly, as amatter of evidence law, this circumstantial evidence is not stronger than, for instance, a can with a trace of beer found in a car in a case where the driver is charged with negligent driving under the influence of alcohol. As soon asa satisfactory explanation appears for the can being inside the car, theevidence’s strength diminishes, if not vanishes.

This problem with perception of evidence also conflicts with thefunction of the legal process in the French legal system. As opposed to thestatistics perceived as exaggeratedly strong evidence, however, witnesses

are perceived as an extremely deceptive means of proof, because of their weakness. Witnesses’ testimony is a malleable means of proof developedthrough interrogatories and subject to change through questioning.Conversely, documents predate litigation. There is no possible change inwhat is written. Moreover, they speak directly to the judge without any needfor interrogation.

2. Perception and the Legal System

The aversion to using witnesses emerges clear-cut, explained by the

perception one appears to have of them, rather than to their individualevidential strength. The effect of this perception is fuelled by another peculiar feature of the French system of civil procedure: the powers investedin the judge to elicit facts and gather evidence. These powers give to thelitigants the perception that, at least indirectly, the judge is somehow alsoliable for the failure of a party to prove a claim.61

By means of illustration, let us return to the case of the collectablecar.62 Let us assume that the parties had an authentic documentation statingthat Perroy and Bro bought the car and owned it in equal shares. Such a

document would have left little room for interpretation as to the fact thatPerroy and Bro owned the car in equal shares. Even if the documenthappened to be a forgery, authentication, which is the documentarycorollary to credibility, is an external process in which both parties intervene.Let us move back to the current factual scenario, but assume that theexclusionary rule does not apply and that half of the witnesses proposed bythe litigants support Perroy’s claim and the other half support Bro’s defence.In assessing the credibility of the witnesses, the judge would have had to

61 M.R. DAMAŠKA, THE FACES OF JUSTICE AND STATE AUTHORITY A COMPARATIVE APPROACH TO THE

LEGAL PROCESS 121 (Yale University Press, New Haven 1986).62 CASS 1e

CIV December 3, 1996 [1996] Bull CIV I Nº 431, at 301 (Fr.).




In the years of formation of the evidentiary models, a wide range of old

common law principles excluded relevant evidence on grounds of fairnessand rectitude: Parties were deemed to be incompetent to give testimony intheir own case as the presumption was then that a man in difficulty willmake declarations for himself,64 and spouses were also disqualified under the extension of the presumption and the doctrine that husband and wifewere one, etc..65 Most importantly, the few witnesses considered legallycompetent to give testimony were often suspected of perjury.66

This low perception of the value of witnesses’ testimony combinedwith the importance of their testimony on actions based on oral contracts

explained the distrust for oral testimony and the preference for writtenevidence. The situation was rather similar in the civil law model. This wasmade notorious with the issue of the Ordonnance sur la Réforme de laJustice 1566 (Fr) in France and the Act for the Prevention of Frauds andPerjuries 1677 (UK) in England. Indeed, both pieces of legislation sought toexclude the testimony of witnesses as a means of preventing perjury and thesubordination of perjury. The exclusionary similarity and the chronologicalorder of appearance have allowed tracing from the French legislation thesource of inspiration of the English legislator,67 but this inspiration was not

transmitted to the members of the judiciary.The English courts indeed rejected rather early this solution simply because “[H]ad the Statute of Frauds been always carried into executionaccording to the letter, it would have done ten times more mischief than ithas done good, by protecting, rather than by preventing frauds.” 68 Theexclusion finally lost its force when the rule that forbade a person to testifyin a proceeding in which he or she was interested was lifted by the EvidenceAct 1851.69 Since then, parties were allowed to give testimony in their owncase as witnesses and subjected to the penalty for perjury.70 Other dramaticchanges also occurred during those years: the public and direct assessmentof witnesses, parties and non-parties, through direct and cross-examination

64 R v Hardy (1794) 24 Howell State Trials 199, 1093-4 (Lord Eyre) (UK).65 J.H. WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW 211-3 (T McNaughton ed., Little, Brown andCompany Boston 1961) (1904). cf. Bentham supra note 5, at 327-345.66 W.S. HOLDSWORTH, A HISTORY OF E NGLISH LAW 387-93 (Methuen & Co Ltd London 1924).67 Rabel, supra note 12, at 177.68 Simon v Metivier (1766) 1 Black W 599, 601; 96 ER 347, 348 (UK).69 Act to amend the Law of Evidence 1851 (UK) 14 and 15 Vict c. 99 s. 2.70 JF Stephen, Section Seventeenth of the Statute of Frauds 1 LQR 1, 6-7 (1885) (“[I]t is a relic of

time when the best evidence on such subjects was excluded … reasonable and natural at a time whenthe evidence of the parties was excluded in all cases; but it seems to me to have become altogether antiquated, and contradictory to the rest of the system to which it belongs, now that the evidence of the parties is admitted in all civil proceedings whatever”).




was substituted for the oath as a security for preventing and detecting perjury.

In other words, the low perception of the value of the testimony of witnesses gradually changed when parties became the primary source of evidence. This was eventually complemented when the mechanism to testthe trustworthiness of their testimony turned into an open and public event,where the questions, rather than the oath, became the tool with which to testthe reliability of the evidence.

The mechanism to interrogate witnesses in France, the enquête, has,however, remained almost unchanged since its introduction by King Louis IXin the 13th century.71 There is rarely direct assessment by the fact finder in

complex cases where a tribunal of three members intervenes, let alone director cross-examination. In other words, the oath and the criminal charges for perjury are still the main tools that a judge uses to assess the reliability of thetestimony.72 Concerning parties, they are still legally incompetent to givetestimony in court as witnesses;73 furthermore, rather convoluted mechanismsare used to obtain information of evidentiary value from the parties.74

This approach shows that the low perception of the value of thetestimony of witnesses is not only a matter of evidence, but it is also linked toan epistemological perception. Further, the legal system has admittedly been

unhelpful in changing it. This, in turn, shows an important contrast with thecommon law system, which managed to adapt itself better to changes, e.g. toimpose the use of written evidence to record transactions, the same result thatthe French legislator purported to achieve, but without excluding witnesses.In light of this rather slow evolution of the legal system to satisfy modernneeds in French litigation,75 it is not surprising that the low perception of testimonial evidence in France has remained unaltered since 1566.

71 Ordonnance sur les Duels et la Preuve par Témoins 1260 (Fr) ss 2-7 in 1 R ECUEIL GÉNÉRAL DES

A NCIENNES LOIS FRANÇAISES DEPUIS L’AN 420 JUSQU’À LA R ÉVOLUTION DE 1789, 285-8 (FA Isambert,Decrusy and AJL Jourdan eds., Librairie de Plon Frère Paris 1822).72 Nouveau Code de Procédure Civile [N.C.P.C.] art. 211 & Code pénal [C. Pen.] art. 434-13 (Fr.).73 Cass. req. July 21, 1880 [1881] 1 DP 201, 202 (Fr.), cf . J. VINCENT & S. GUINCHARD, PROCÉDURE

CIVILE (25 edn Dalloz Paris, 1999) [1093]. This is in contraction to case law in this matter decided bythe European Court of Human Rights, who declared incompatible with Article 6 of the EuropeanConvention on Human Rights a similar prohibition under the old Dutch Code of Civil Procedure(Wetboek van Burgerlijke Rechtsvordering) whereby civil litigants were not allowed to depose aswitness in their own case. The importance of the European Court of Human Rights’ decision for French law is that the prohibition of the old Dutch Code of Civil Procedure stemmed from French law. Dombo Beheer BV v The Netherlands Serie A Nº 274 (1994) 18 EHRR 213 [32]-[35].74 See A. PONSARD, Rapport Français, 38 LA VÉRITÉ ET LE DROIT 688-90 (Trabaux de l’Association

Henri Capitant ed., Economica Paris 1987).75 The civil procedure reform of 1970s is the most important reform in French civil procedure in thelast two centuries and the inclusion of documents in electronic format as preuve littérale in 2000 isthe most dramatic reform in the law of evidence since 1566.




CONCLUSION

From this analysis, it emerges that the legal systems are not as differentas the stereotyped descriptions appear to show. Particularly, regarding theuse of evidence, the analysis has illustrated that more often than not, thesystems share a remedy, namely exclusion of relevant evidence, for acommon problem: The risks that its use may mislead the fact finder undermining the acceptance of the judgment.

The analysis has also shown that in both systems, the exclusionarysolution became a problem. Moreover, the particular conceptual context inwhich the exclusion of relevant evidence has taken place in each of the jurisdictions prevents one from entering into doctrinal debates within the jurisdictions themselves. Most importantly, it has contributed to theoverlooking of the fact that they were excluding relevant evidence for similar reasons and causing similar problems with rectitude of decision.

This is admittedly a modest finding, but its relevance should not beunderestimated. It illustrates the fact that the systems are not asdiametrically opposed as it appears. Moreover, the fact that evidence could be reduced to illustrate a means, which deals with factual uncertainty in bothsystems, opens a wide horizon to search for functional equivalents, as theexclusionary rules have shown in this analysis.

There remain important differences, however, as the epistemological perception of relevance has illustrated. The presentation of Daniel Vaillantin the Senate appears to make sense now. The French system of proof incivil litigation is effectively mid-way between the “legal and free proof principle.” This is not due to any legal rule as the Ministry claimed, butsimply because epistemologically, rather than legally, the validation of theuse of evidence favours one over the other.

There are, therefore, both legal and cultural needs that have to besatisfied in order effectively to promote rectitude of decision. The former requires a change of the rule of law and the latter a cultural change in the perception of relevance regarding evidence. These changes, however,require an understanding (and this and other comparative work may help inthis process), firstly, that there is no hierarchy of evidence within the legalsystem, thus witnesses are certainly neither less nor more inherentlytrustworthy than any other evidence. Secondly, that although rectitude of decision may be affected by the proper use of witnesses, even more errorsand unfairness may derive by excluding their relevant testimonies.



690

CRIME AND CRIMINOLOGICAL STUDIES FROM

AFRICAN TRADITIONAL PERSPECTIVES: A CASE

STUDY ON NIGERIA

Adeniyi Olatunbosuna

Before the adventure of Europeans to the African Continent, African

communities had their indigenous ideas on crime and victim logical studies.

To understand African perspectives on crime and criminal justice process,

there is an intrinsic need to understand their past through a reconstruction

based on a collation and articulation of their beliefs and traditions. This

paper seeks to provide insights into the background on the meaning of

crime and criminal policy in African societies with a view to presenting an

accurate picture of the people in their pre-contemporary stage with a bid to

unravel the trends of development in modern times. The paper also attempts

to correct misinformation about earlier periods of African history and legal

traditions that has often been taken as knowledge of African laws.

I NTRODUCTION

From relatively recent development in the field of criminal law leading

to the study of criminology in Europe as a separate branch of law with

multi-disciplinary sources of data for its contents, there has been a little

knowledge about the past of many African peoples idea of crime, albeit

criminology apparently because of dearth of data as the practitioners and

other stake holders involved in the administration of criminal justice system

were not lettered. Under Western jurisdictions, for any conduct to be rightly

classified as a crime for example in English jurisprudence, it must be

expressly forbidden and the punishment prescribed in a statute. These

requirements formed the basis for the abolishment of African customary

criminal law in many post-colonial African independent states. Subjecting

the legality of customary criminal justice system to the requirement of

codification underscores a correspondingly low level of understanding of

African indigenous cultures and values. Of significant effect of this trend is

that virtually in all parts of Africa from the 19th Century, indigenous legal

cultures have been steadily going into extinction with the successive rise in

the adoption of European jurisprudence.

Consequently, knowledge of the African legal history has continued to

shrink and vanish due to lack of adequate attention and authoritatively

Ph.D., Faculty of Law, Obafemi Awolowo University, ILE-IFE, Nigeria.



2011 CRIME AND CRIMINOLOGICAL STUDIES 691

written literature. The paper further attempts to bring about a conversation

on the extant vestiges of African societies and cultures before the pervadingforce of globalization finally sweep them away.

I. AFRICAN IDEA OF CRIME

Crime from the African indigenous perspective, is an act or omission

which brings harm, suffer or injury to a person and is not justifiably

permissible by traditions, customs and practices of a given community. The

key essential classification of a conduct as criminal is the proof that such a

conduct offends the strong and definite collective feelings or psyche of the

generality of the society or community. Comparatively, African customary jurisprudence sharply contradicts, contrasts and at variance with Western

jurisprudence. African idea of law and justice is impatient to wait for the

European concept of justice especially common law systems that are

intrinsically technical, in nature. Thus, the western culture which

emphasizes punitive approach to the treatment of offenders until recently

when non punitive measures are being steadily addressed through

criminological studies was strange to the African concept of justice and

treatment of offenders.

Victims of crimes have always been accorded significant role in theadministration of customary criminal justice which from time immemorial

promote compensation, restitution and arbitration among other forms of

alternatives remedies to imprisonment. Even at the sentencing stage,

individualization approach, reconciliation of the accused with the victims

and compounding of punishment took significant place in the determination

of guilt and application of punishment Suffice to say at this juncture that

most African continent comprises of heterogeneous independent nations

with innumerable communities, ethnic divide, languages, dialects,

indigenous laws and customs. Perhaps with the exceptions of Islamiccountries operating personal law of sharia, the remaining majority of

African nations was governed and is still being governed by customary laws

which are rooted in proverbs and of enduring normative values.

Predominantly these laws were unwritten, yet there were largely written in

the minds of its people and tenaciously guided and honoured. The beauty of

African customary law is that it is dynamic and susceptible to changes.

Using Nigeria as a case study, with population of about 150 million, over

250 languages and close to 5,000 thousand dialects in mother tongues of the

people exhibiting their cultural diversity, it is imperative to beam a searchlight on the their legal culture and heritage as a form of academic obligation




and moral burden on the part of this author as well as other criminal law

experts/criminologists interested in the study of African customary law to bring into the gathering of experts of this magnitude, the criminological

perspectives of African criminal jurisprudence.

II. AFRICAN TRADITIONAL CONCEPT OF CRIME

African tradition consists of opinion, belief and custom handed down

from ancestors to posterity. Tradition presupposes modernity, in the sense

that it envisages that such ideas will be carried into the present and recent

generations. The usual practice is to refer to these pristine habits little

unsullied by exotic practices as traditional. Africans prefer their practicesto be described as traditional, while their counterpart from Europe fondly

refer to theirs as modern1. So far as these habits are within the parameters

of our ethnic environments and not reduced into legislation, the appellation

“traditional” covers them, notwithstanding modifications that these habits

have gone through in the contemporary society. This explains why ideas

which are traceable to customs and practices outside the jurisdictions of

African countries will be referred to as modern although such habits are

“traditional” in the country of origin. Suffice to say that the proper notion

is to classify such habits as “alien” or albeit “foreign” especially if theyhave been introduced into our country by way of legislation or through

judicial decisions.

III. AFRICAN CRIMINAL POLICY

To understand the meaning and extent of criminal policy of a society, it

is imperative to understudy that community. This is because the concept and

definition of crime are inextricably intertwined with the societal attitude and

subject to the peoples’ responseTo the forces and events in their environment, the idea of crime existed

in small but numerous societies making up the African continent each

independent and deciding its destiny in accordance with its own ideas of

rights, laws and security. As observed by Karibi-Whyte, some with central

political organization, having permanent judicial institution, administrative

organization, and machinery for law enforcement; while others lack these

institutions, but make ad hoc arrangements whenever the occasion arose2.

1 K ARIBI-WHYTE, A.G., CRIMINAL POLICY: TRADITIONAL & MODERN TRENDS 4, 5 (Nigerian Law

Publications, Lagos 1988).2 Ibid . p11.




In European societies, there is interdependence of law on morals as can

be seen in most European languages, there are no separate words for “rights” and “law”; the German Recht, the French Droit, the Italian Diritto ,

and the Spanish Derecho 3. They make no distinction between law and right.

IV. A NALYSIS OF CUSTOMARY CRIMINAL LAW

Customary criminal law existed in many African societies including

Nigeria before the British introduced common law of crimes by Ordinance

No.3 of 18634. Although, this law provided for the observance and the

enforcement of local law and custom in native courts, they were denied of

all traditional authority. The effect of the reception of English law was theabolition of customs regarded as in human and barbaric such as the trials

by ordeal and witchcraft practices5

and the passing of legislation against

slavery6.Also, the received English law, was different in a sense from the

reception and adaptation of Roman Law in Europe, the spread of the

French Civil Code to Central and South American States, the Swiss Code

to Turkey and the adoption of the German Code by Japan. In most of these

instances the reception was a deliberate desire of the receiving nations and

these laws were mostly adapted to suit the conditions of the people living

in such countries.Thus, the customary law of crimes was measured by the standard of

common law of crimes. In fact, the whole of customary laws was permitted

to operate in so far as it was not repugnant to natural justice, equity and

good conscience. Even though, the justice was not according to Nigerian

standards, while the measurement of equity was hinged on English law and

conscience was tied to Western and Christian idea.

It is remarkable to point out the two main characteristics of customary

criminal law, is that it is unwritten and derives its force on its acceptance in

the community. Many European historians and jurists believed and recordedthat Africans lived in a state of anarchy without laws before the sojourn of

Europeans powers arguing that might was right, the strong and the rich

suppressed the weak and poor. It has been said by Holleman7, that there is

3 See Sir P.Vinogradoff, COMMON SENSE IN LAW 18 (3d ed. 1959), quoted in Cultural Conflicts in the

Criminal Law of Southern Nigeria-With Special Relevance to Homicide, L.O. Aremu, Ph.D. thesisunpublished, London School of Economics and Political Science 48 (August 1971).4 See Section 1. See also, LUGARD-DUAL MANDATE, PERHAM-NATIVE ADMINISTRATION IN NIGERIA;

R EX NIVEN, HOW NIGERIA IS GOVERNED; K. O NWUKA DIKE, TRADE AND POLITICS IN THE NIGER DELTA

1830-1885: A N I NTRODUCTION TO THE ECONOMIC AND POLITICAL HISTORY OF NIGERA.5 By the Ordeal, WITCHCRAFT AND JUJU PROCLAMATION, No.13 of 1903.6 Slave Dealing Proclamation, No.5 of 1901.7 HOLLEMAN J.F., ISSUES IN AFRICAN LAW (1974).




no African jurisprudence. Sharing the same idea, Hughes Trevor Roper, a

prominent historian, remarked that perhaps in the future there will be someAfrican history to teach but at present there is none, there is only the history

of Europeans in Africa. The rest is darkness and darkness is not subject of

history.8

In the same manner Perham, posited that until the adventure of

Europe to the African continent, the greater part of the continent was

without the wheel, the plough or the transport animal, without stone houses

or clothes except skin, without working and so without history.9

With due

respect to these Scholars and those who share similar views, such positions

were erroneous and false speculations, unguided findings of unskilled

inferences into the historical past of people of African descent. A foremost Nigerian historian, Adewoye has rightly corrected the wrong perception of

Europeans, when he pointed out that African traditional idea of law is rooted

in the moral philosophy of the society.10

Similarly, a foremost legal scholar,

Popoola, has also debunked some of the assertions of the early Europeans

about African history and idea of law, when he pointed out the need to study

a society , its beliefs, customs and values with a view to bringing out the

contributions which these thoughts have made and capable of still making to

knowledge.11

Studies have shown that murder and all other sorts of crimes

were considered reprehensible by traditional institutions and societal mores.These arrangements especially among societies with chiefs and kings

described as chiefly societies and those with less developed administrative

and judicial institutions.12

The British for instance did not give the

traditional customs time to adapt to the English pattern, they just swept

indigenous ideas of the people away and there was nothing left but the

English notions of crime to take their place. In spite of self proclamation

and promotion of common law to a pedestal of the best inheritance and

endurable legacy that can be bestowed on any civilized society or those

aspiring to be, one can rightly say that there is nothing unique about

common law of crimes. The ideas imbedded in its principles are similar to

those already implicit in many African concepts of customary crimes.

Customary criminal offences among the people of southern Nigeria then

included homicide, suicide, incest, sorcery, witchcraft, theft, adultery,

burglary, treason, rape, and disrespect to authority (i.e. the chiefs, elders or

8 Hughes Trevor Roper, Professor of History at Oxford University, Britain.9 Margery Perham,1951.10 Omoniyi Adewoye,Longman, THE LEGAL PROFESSION IN NIGERIA 1865-1962 , Nigeria.

11 Poppola A.O., African Philosophy and Ideas of Law, a lecture note on jurisprudence, delivered for law students, Faculty of Law, Obafemi Awolowo University, ile-ife, Nigeria, 2010.12 See FORTES & EVANS PRITCHARD, AFRICAN POLITICAL SYSTEMS, 1940, ELIAS T.O, NATURE OF

AFRICAN CUSTOMARY LAW, 1956, BOHANNON, JUDGEMENT AND JUSTICE AMONG THE TIV.




taboos). It is important to stress that one of the grudges of English standard

of testing acceptable crimes or criminal trial is the condemnation of witchcraft and trial by ordeal, nonetheless witchcraft had sometime in the

past a recognized crime in England, yet the English repulsively condemned

the belief as if it has never been heard before. Even though trial by ordeal

was condemned as barbaric habit, it had its own good side at that time,

forms of ordeals were used to detect the guilty parties in criminal trials

where this was done in cases such as witchcraft and adultery where there

was either no other evidence available or where the facts is shrouded in

mystery and there was no other way of getting at the truth. No human device

is perfect; a more scientific method developed in recent times is the liedetector machine. The essence of both is to serve as aid to administration of

justice among the people. The belief of the Africans then was that aspects of

trial by ordeal was a procedure known and acceptable to them in resolving

some victimless offences and where proof of guilt could not be established

with direct evidence or non availability of eye witnesses account. Contrary

to the impression created that ordeals were principally based on taboos and

poisons, not in all situations. Some ordeals referred to as taboos were just

simple fanciful work of arts and indigenous experiments in terms of

sacrifices and expert display of skills bound up with the process of detecting, judging and punishing criminals. These practices and habits were rooted in

religion of the people, which were also part of their law and life in general.

As religion invariably supplied the content of moral rules, it would therefore

not dialectically at variance with the societal belief that was not yet

influenced by Christians ethics to reflect its cultural ideals that would

necessarily different from those of another religion and culture.

In the same vein, the measurement of non-codification of conducts

regarded as crimes was clearly understandable in a society that is not literate.

These antisocial conducts were clearly understood and accepted as mores of

the society handed down from generation to generation in terms of foreklore,

proverbs, idioms, and incantations. In the same manner, common law

crimes were never codified, even up to the present day. As rightly observed

by Elliot and Quinn13

, at the moment the criminal law is inaccessible to the

public because it is contained in a wide range of legislation and judicial

decisions which can be difficult for lawyers to understand, let alone lay

people. This has led some to favour the creation of a criminal code which

would bring together in one accessible book the key legislative provisions of

the major criminal offences. The criminal law in most other countries is

13 CATHERINE ELLIOTT & FRANCES QUINN, CRIMINAL LAW 391, 392 (Pearson Longman, Harlow,England, etc., 6th ed. 2006).




codified. The Law Commission14

continues to undertake a considerable

amount of work towards the development of an English Criminal Code,

15

but for the time being there does not appear to be the political will to

introduce such a code.16

The various communities of Nigeria had judicial systems that were

administered in their respective domains, which had the primary objective

of achieving peace-keeping and maintenance of the social equilibrium17

. A

community in traditional settings in African societies was a corporate

entity with a network of interrelated kinship pattern. The traditional

judicial system comprised of the chiefs, or the council of elders in a chief

less society, and his council of advisers to administer justices to communalcases and individual cases that could not be resolved by elders of a family

unit, who ordinarily acted as court of first instance as peace makers called

upon on ad hoc bases to adjudicate on various matters on civil and

criminal cases and for the overall preservation of the society physically or

spiritually whenever the peace of the whole society is being or is likely to

be threatened.

V. EVOLUTION OF CRIMINOLOGICAL THOUGHTS

As earlier stated, law in the pre-colonial era of Nigeria was unwritten, but its principles were sometimes expressed in proverbs, that were latent in

the minds of the people who are meant to obey these laws and in the minds

of the ruling chiefs that applied and ensured its enforcement. These

traditional laws though largely unwritten, was more real and effective than

the colonial and post-colonial written laws of crimes, in the sense that

people complied with it more as effective instruments in regulating their

society. Moreover, in the hierarchy of courts and adjudication process then,

14 Created in 1965, by Law Commission Act with the task to codify the law, but to date the

Commission has only had very limited success.15 It produced a series of working papers from 1968-1974, but announced in 1980 that its shortage of

resources would not allow it to continue, and appealed for help with the task. The society of PublicTeachers of Law responded, and established a committee headed by Sir J. C.Smith a first draft was

produced in 1985 and after a wide consultation a final Draft Code was published in 1989, but this hasnever been legislated.16 The draft code has never been presented to Parliament. In 2001 the Government published anofficial paper, Criminal Justice: The Way Ahead. This paper was presented to Parliament by the

Home Secretary in February of that year as the Government’s vision of the future for criminal justice.See also Bingham, Lord Justice, A Criminal Code: Must We Wait Forever?, CRIMINAL LAW R EVIEW

694; Ferguson, P., Codifying Criminal Law(2): The Scots and English Draft Codes Compared ,CRIMINAL LAW R EVIEW 105 (2004); Hare, I., R v Savage, DPP v Parmenter, A Compelling Case for

the Code, 56 MODERN LAW R EVIEW 74 (1993).17 Elias T.O., 1972 Adewoye, O., 1977.




the role of juju priest as the apex court of the land among the Ibos of the

present south east of Nigeria and as an expert or amicus curie among theYoruba people of the present south west Nigeria served as the last resort in

resolving the most difficult civil and criminal cases. Its decision among the

Ibos was final in any referred case. While the chief in the Yoruba region

mostly abided with opinions and counsel of the priest, although in isolated

cases the chief might turned it down. The position in the south west of

Nigeria then could be likened to the Austinian positivist view that law is the

command of the sovereign. The chief for example, the Alaafins of the then

old Oyo Empire had a sovereign power of life and death.18

Also, the ifa

oracle which is like a treatise or tora, consists of many volumes and chaptersof issues relating to humanity and served and still serving as spiritual guide

to adherents who believed in its efficacy. The oracle also consist f laws that

govern the society both in terms of substantive law and procedure for trial

and sentencing of those found guilty of violating the ideals and laws of the

communities. Several methods were used and still being used in consulting

and making references to subject matter of trial. Examples are opeles , a set

of cowries made with strings, cowries and sand sign symbol; all these are

similar to the tossing of coin nowadays in deciding decision like by the

starting of football match and in cases of tallies in world competition. Onesignificant episode of the use of African traditional device of consulting for

future happenings or events was at the just concluded world cup match in

south Africa, as demonstrated by the south Africans that consulted a woman,

native doctor for divination on the support, concern and favour for the south

African team bafana-bafana in the encounter for the then forth coming

match between south Africa and France, the euro sport reporter, a lady from

south Africa in companying of a south African fan visited the traditional

native doctor, who performed some incantation and threw coconut palms or

cowries and predicted that south African would score two goals in the first

half and that she saw France scoring later, but at the end south Africa will

win. And it came to past19

.

18 See Crowther & Michael, The History of West Africa; Crowther & Michael, Colonial West Africa,

collected essays (Guildford, London and Worcester: Billing & Sons Ltd. 1978).

19 Euro sport relayed this episode on at the television sport coverage by a German, moderator , oneBrazilian, and one, South African lady in June 2010. Also, a professor of computer engineering,

university of Ibadan in his inaugural lecture claimed that computer devise mechanism is related or traced to ifa oracle.




CONCLUSION

The African continent is widely endowed with traditions, customs,

norms and values as enshrined in the various traditional system of

administration of justice. A large number of systems of criminal law existed

in the African Continent, particularly in that area now known as Nigeria,

administered by the political entity ensuring the enforcement of certain

standards of behaviour and imposing punishment for their breach. Although,

the traditional mode of administration of justice in Africa has its

imperfections such as trial by ordeal is a misnomer practice which had its

root in the belief in the supernatural20

. The underlying philosophy of this

practice is hinged on the understanding that the accuser and the accused in

civil disputes or suspected persons in criminal offences could be subjected

to an ordeal and whoever survived would be adjudged to be the right.

Whenever there were doubts, ordeals were used based on the underlying

belief that if human attempts to get at the truth failed, at least the unseen

forces would not err.

Another notable shortcoming of the African system of administering

justice is occasional preference of status. At times preferential treatment or

special recognition is accorded a senior or superior party (e.g., a warrior,

husband or even as a man). Nevertheless, African juristic thoughts are

rooted in laudable ideas, which can be of importance to western

jurisprudence.

For example, unlike the conventional criminal law adopted from the

British which emphasizes individualism of punishment based on the

principle of deterrence, retribution, elimination, and rehabilitation

customary criminal justice system on the other hand, is founded on the need

for social cohesion and collectivism in criminal responsibility tied to the

pivotal role the society plays in ensuring harmonious relation in the

community.

More, importantly, the philosophy behind Customary Criminal process

is predicated on the belief that the purpose of law is the maintenance of

peace, order and equity. In African jurisprudence, the first and paramount

duty of the Court in the resolution of a dispute is it civil or criminal in

nature is reconciliation and not the pursuit of abstract justice.21

On the

Contrary, the Winner takes all syndromes for which English pattern of

20 See AWOLALU & DOPAMU, WEST AFRICAN TRADITIONAL R ELIGION (Onibonoje Press, Nigeria 1979). Note that Trial by Ordeal has been abolished under the Criminal Procedure Act.21 See A.P. A NYEBE, CUSTOMARY LAW: THE WAR WITHOUT ARMS (Fourth Dimension Publishers,

Nigeria 1985).




criminal proceeding is noted for customary criminal trial attempts to

apportion blame between the accuser and the accused. In many criminaltrials, the breaking and sharing of Kola nuts often precedes proceeding

while the parties, witness and spectator partook in the sharing of kola nut as

a sacred act of Communion.22

It is sufficient to say that an attempt has been

made in this paper to analyse the African mode of juristic thought and the

workability of fusing of customary law ideals with the principles of general

law of crime.

22 Adewoye, O., Proverbs As Vehicle of Juristic Thought among the Yoruba, a paper presented atFaculty of Law, University of Ibadan Seminar Series (1987).



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US-CHINA LAW REVIEW

VOLUME 8, NUMBER 7, JULY 2011 (SERIAL NUMBER 80)

CONTENTS

ARTICLES

R EFORMS OF PUBLIC ADMINISTRATION OF LATVIA –WHERE NEXT?

J nis Na is ionis & Una Skrastia 617

BIODIVERSITY AND BIO-FUELS IN BRASIL

Vladimir Garcia Magalhães & Raziel Hain Calvet de Magalhães 645

DECENT WORK FROM THE PERSPECTIVE OF THE R IGHT TO DEVELOPMENT

AND HUMAN DEVELOPMENT

Saeed Reza Abadi 657

ESSAYS

MEANS OF PROOF IN COMMON AND CIVIL LAW SYSTEMS: A COMPARATIVE

APPROACH

Leonardo J Raznovich 669

CRIME AND CRIMINOLOGICAL STUDIES FROM AFRICAN TRADITIONAL

PERSPECTIVES: A CASE STUDY ON NIGERIA

Adeniyi Olatunbosuna 690



Editorial Board Members

Africa

Prof. Obeng Mireku (University of Venda, South Africa)

Asia

Dr. Ming Qi (Jilin University, China)

Prof. Shenting Tsai (National Taipei University, China Taiwan)

Dr. Mohsen Abdollahi (Shahid Beheshty University, Iran)

Prof. Shlomit Yanisky-Ravid (Ono Academic College, Israel)

Prof. Young Hoa Jung (Chonbuk National University, Korea)

Dr. Sibel Hacmahmutolu (Hacettepe University, Turkey)

Europe

Dr. Ivo Angelov Hristov (Sofia University Bulgaria, Bulgaria)

Dr. Michal Radvan (Masaryk University, Czech)

Dr. Pavel Koukal (Masaryk University, Czech)

Dr. Dana Sramkova (Masaryk University, Czech)

Prof. Mauro Bussani (University of Trieste Law School, Italy)

Dr. Louis Visscher (Erasmus University Rotterdam, Holand)

Prof. Gordana Kovaek-Stani (University of Novi Sad, Serbia)

Assistant Prof. Titti Mattsson (Lund University, Sweden)

North America

Prof. Daniel Dos Santos (University of Ottawa, Canada)

Prof. Paul Dewitt Carrington (Duke University, USA) Prof. Paul F. Hodapp (University of Northern Colorado, USA)

Assistant Prof. Dawn Jourdan (University of Florida, USA)

Prof. Kevin F. Wall (Rensselaer Polytechnic Institute, USA)

South America

Prof. Leonel Cesarino Pessôa (Universidade Nove de Julho, Brazil)

Prof. Marta Rodriguez de Assis Machado (Getulio Vargas Foundation School of Law,

Brazil)



US-CHINA LAW REVIEW

VOL. 8 JULY 2011 NO. 7

617

ARTICLES

REFORMS OF PUBLIC ADMINISTRATION OFLATVIAWHERE NEXT?

J nis Na is ionis & Una Skrasti


public administration system from the Soviet regime. Twenty years have

gone by and the state mechanism has changed and along with it public

administration as the social (political) goals foreseen in the laws constantly

change and therefore public administration, which is a tool for achieving

these goals must also change. It means the public administrations

institutional structure should be constantly established, liquidated and

reorganised and existing procedures should be developed anew or amended.

Consequently public administration has to be constantly reformed. This

paper reviews the problems faced over the past few years during reforms of public administration in Latvia as it is shown by practice that the

understanding of the reforms and the way in which it has been attempted to

implement them have up until now been most often incorrect.

I NTRODUCTION............................................................................................ 618I. STRUCTURAL R EFORMS ........................................................................... 619II. O N LATVIAS STRATEGIC DEVELOPMENT PLAN ..................................... 625III. PROCEDURE FOR ORGANIZATION OF STRUCTURES OF PUBLIC

ADMINISTRATION I NSTITUTIONS ........................................................... 632IV. STRUCTURAL CHANGES IN PUBLIC ADMINISTRATION........................... 636

A.Reorganization of State Chancellery .............................................. 637 B.Reorganization of Ministries .......................................................... 638C.Threats of Mergers ......................................................................... 641

CONCLUSIONS ............................................................................................. 642 Professor of Law, School of Business Administration Turiba; research fields: Administrative Lawand Administrative Procedure. School of Business Administration Turiba; research fields: Administrative Law.




I NTRODUCTION


public administration system from the Soviet regime. Twenty years havegone by and the state mechanism has changed and along with it publicadministration has changed as well. The society expected the changes in public administration to be effective and hoped to achieve a qualitatively better situation. However their hopes failed. The society understands thatsomething is wrong with public administration and feels that it is a problem. The European Union views this problem as Latviasadministrative weakness.

Public administration is a complex, in fact the most complex social

mechanism. It is the most complex of three state power branches: legislative,executive and judiciary. Administration is subject to the definite goals thatare determined by the legislative body. As the social (political) goalsdetermined in the laws constantly change, public administration which is atool for achieving the goals must also change. It means the publicadministrations institutional structure should be constantly established,liquidated and reorganised and existing procedures should be developedanew or amended as necessary for the achievement of goals set byconstantly changing laws. Therefore public administration needs to be

constantly reformed. Mechanisms should be created to constantly check,evaluate and reform public administration. 1 The key word in publicadministration is efficiency which until now has only been realised in paper despite Latvia having all the basic principles of the rule of law.

From the financial perspective it should be taken into account that it isrelatively more expensive for smaller states to maintain a publicadministration structure than for larger states. Regardless of the size of thestate, each state has to adopt more or less the same number of laws and lawsof equal quality as well as implement them. The State administration

structure Law came into force in Latvia in 2003.2

A possible better publicadministration structure was created subject to the law and its basic principles of operation were determined. One of the main goals of the Stateadministration structure Law was the provision of effective publicadministration and this term has been mentioned more than 10 times in the

1 Egils Levits, Valts prvalde ir past v gi jreform [ Public Administration Should Be Constantly Reformed ], http://www.politika.lv/temas/7356 (referred on June 14, 2011).2 Valsts prvaldes iek rtas likums, Latvijas Republikas likums [State Administration Structure Law.

LAW OF THE R EPUBLIC OF LATVIA], Latvijas Vstnesis , June 21, 2002. No. 94, with amendments May13, 2010, Latvijas Vstnesis May 26, 2010, No. 82.




law. The concept of the Law points out: This concept in accordance withthe law has to create a tool for the state to reduce deficiencies inadministration and to underpin and consolidate within the framework of

the constitution wherewith the state administration operates in a democraticstate. Eight years have lapsed and during this period the reform of the public administration has been discussed several times. In particular thesediscussions have been more vociferous in times of economic crisis. It hasmade one ponder and discuss, however often these discussions have been ata primitive level and just restricted to issues on the liquidation 3 of stateinstitutions referring to them as structural reforms.

Part I explains what kind and in what sectors are carried out structuralreforms and come to conclusion that the reforms continue to be budget

cutting.Part II investigates that structural reforms ought to be consistentlyimplemented, but the next stage ought to move from the budget cutting tothe government function evaluation included the full audit of administrativefunctions. Part III examines building of the system of administrativeauthorities and a separate administrative body structure in accordance withmanagement theory and law regulations. Part IV shows research devoted tostructural reforms in State chancellery and Ministry for regionaldevelopment and municipal affairs (RAPLM), which is smaller part of

structural reforms in our country. I. STRUCTURAL R EFORMS

Over the recent years the concept of structural reforms has been mainlyviewed upon in the context of attempts to provide for a sustainable state budget. Although one has become weary of this term it still refers tosubstantial work towards the improvement of the welfare of the state andhence it is important to understand what is meant by structural reforms and

how important it is to Latvia at present. It seems that people are mostlyconfused because the term is mentioned most frequently in the mass mediain connection with cutting the state budget and therefore giving it thesame meaning. It is true that the first step on the road to efficientadministration is the cutting down on unnecessary expenditures or expensesthat the state or for example enterprises could simply not afford.Unfortunately austerity measures do not always lead to sustainable well-

3 Gatis Litvins, Egils Levits kritiski v rt valsts prvaldes reformas[ Egils Levits Critically Evaluates

State Administration Reforms], JURISTA VRDS No.19 (614) May 11, 2010, http://www.juristavards.lv/index.php?menu=DOC&id=209384 (referred on June 7, 2011).




considered reform as indicated by Guntis Kalni, economist, Bank of Latvia.4

To answer the question it is necessary to agree upon the meaning of

this code word. In Mrti Bitns, economist, Bank of Latvia, opinion:structural reform is the reformation of a system to gain better results withthe best use of time, human and monetary resources invested therein. Such areformation is necessary for public administration, its branches (education,health), certain institutions, and enterprises and in the end also for householdsonly in the latter case we call it otherwise. Talking aboutrecovery from the crisis and development of a sustainable economy,regaining and increasing the competitiveness of the state, we most oftencome upon the necessity of structural reforms in the public sector and state

financed sectors as the goal is to use the limited budget funds that areavailable after the overheating of the economy in a goal oriented and usefulmanner. Structural reforms in this context could refer to reforms in theorganisation of state institutions, changes in the functions of the publicsector (education, health, social system, and security), distribution of fundsfor these functions and assigning these functions to the private sector. Sostructural reforms are closely link with the macro economic situation in thecountryneither the sustainable fiscal development of the state nor theincrease in welfare level in Latvia over the long term is possible without

qualitative structural reforms in public administration.5

The government can influence the competitiveness of the state mainly by cost efficient development of public administration and efficient provision of public services. With the separation of state functions fromservices that can be offered by the private sector, the role of public sector inthe economy could be reduced, the distribution of resources is optimisedand the tax burden on the inhabitants and entrepreneurs could be reduced inthe long term. These structural reforms make the economy more competitiveand flexible towards possible turbulences. The essential characteristic

feature of the reform is the improvement in the provision of public servicesor their provision at lower costs without reducing the scope or accessibilityof the services provided. Over the short term during the implementation process and on the road to effective policies certain state institutions usually

4 Guntis Kalni, K d valst nepiecieamas struktur l s reformas? [Why Are Structural Reforms Necessary for the State?] http://www.delfi.lv/news/comment/comment/guntis-kalnins-kadel-valsti-nepieciesamas-strukturalas-reformas.d?id=37964085 (referred on June 11, 2011).5 Mrti Bitns, K pc Latvij tik gr ti veikt struktur l s reformas? [Why Is It So Difficult for

Latvia to Carry Out Structural Reforms?] http://www.delfi.lv/news/comment/comment/martins-

bitanskapec-latvija-ir-tik-gruti-veikt-strukturalas-reformas.d?id=37810723. (referred on June 11,2011).




providing these services may face some inconveniences due to the reductionof resources allocated to them. The aim of the structural reforms is to work more efficiently and therefore live better on the long term. Therefore it is a

misconception that structural reforms are carried out under the instructionsof foreign lenders, whose support and advice to the state is significant toovercome the financial difficulties when expenditures exceed income to alarge extent and a financer or lender is necessary. 6

Reforms are carried out if there are reasons to believe that publicadministration resources are not used efficiently, do not provide theexpected results or do not reach a reasonable efficiency levelresults againstinvestment. For example the international comparison of sector policyresults could indicate the possible efficient use of resources.

Of course it would be wonderful if the government were orientedtowards sustainability of public administration during the prosperous yearswhen there is availability of resources and time and the opportunity toanalyse the administration and sector policy structures, compare the policyresults with examples of other states, evaluate the effectiveness of resourcesinvested and make conclusions or the necessary changes. Consequentlyunder the favourable macroeconomic situation the structural reform processwould have less number of those affected. In practice however it isobviously not easily manageable as the government would find it difficult to

justify, for example, the quantitative reduction in resources for the educationsystem or reduction in number of officials when the income from taxesexceeds all forecasts (which under present circumstances seems to be themost successful policy result), and therefore allow or force it to move in asimilar direction further. Therefore structural reforms unfortunately oftenare carried out in times of crisis when the funds for maintaining aninefficient public administration are not sufficient enough.7

Over recent years in Latvian practice while balancing the income andexpenditure in the budget the Ministry of Finance has often had to demand a

certain amount of savings from the different sectoral ministries. Based onthis demand, the task of the sectoral ministries was to find areas of savingsat the same time aiming for structural changes that would in the futureensure the efficient provision of public services. Of course the sectoralministries are better aware of the situations in their sectors than the FinanceMinistry but it does not mean that they could definitely be able to developand carry out long term reforms as the structure of the ministries wereformed for entirely different reasonsto manage the existing situation.

6

Supra note 4.7 Ibid.




Therefore it should be concluded that the reform process in Latvia was notcomprehensive, often reforms being carried out in the short term aimed atnecessary savings in the budget and the implementation of the reforms were

entrusted to the ministries to reform themselves.8

Which sectors in Latvia require reforms?

Which indicators in Latvia point out the structural problems,ineffectiveness and the necessity for reforms? First of all the increase in budget expenditure which went hand in hand with over 10% growth that ischaracteristic of an overheated economy without testifying to anyimprovement in effectiveness indicated the possible emergence of structural problems in the future. The balancing of expenditure to in fact anunexpected increase in income did not indicate observance of any fiscal

discipline and such a policy obviously was not sustainable. Reviewing the policies of individual sectors, of course specialists would know where tofind the ineffectiveness better, attention must be paid to at least a few issuesin the international context. One such issue, e.g., is related to the widelyspread opinion in Latvia that in accordance with certain indicators we are atthe top end and that the average education level is high mainly based onthe student ratio to number of inhabitants. However analysing deeper it can be seen that preening oneself in terms of quantity is not justified.9 Yes, westudy more but are we better? There should be results that indicate

competitiveness of higher education in the labour market, ability of scientists to carry out research that are published in internationallyrecognised scientific journals. The number of alumni is not a qualityindicator and furthermore according to the demographic situation it isforecasted that increasingly fewer number of students will be using thehigher education infrastructure in the years to come.10

The same demographics forecasted that the number of secondaryschool students would decrease by one third since 2003, however during the pre crisis economic period the increase in expenditure for the education

sector was one of the most rapid in Europe. At present even taking intoaccount the reforms started in secondary education the ratio of students per teacher is considerably lower than it was 7-8 years ago. Unfortunately thewide network of schools and relatively high number of teachers that wasachieved due to lower costs by international comparison (i.e., teachers

8 Ibid .9 Vair k skat t, O egs Krasnopjorovs: K kvantit ti prv rst kvalit t [ How to Transforme Quantity

into Quality?], http://www.makroekonomika.lv/izglitiba-latvija-ka-kvantitati-parverst-kvalitate

(referred on June 11, 2011).10 Supra note 4.




salaries) has not resulted in higher quality, e.g., results of the internationalstudents assessment PISA11 have not become higher.12

Similar to the education sector significant quantitative indicators were

achieved, e.g. number of hospitals and beds for patients, in the health sector with relatively low resources. However the effectiveness of state health careis not characterised by the number of hospitals and beds and the advantageof Latvia in these indicators does not provide any advantage in theimprovement of communitys health. It is justifiable to argue that the stateexpenditure on education and health in Latvia is relatively low, however ascan be seen the system is oriented towards the provision of quantity notquality. There are countries (Slovakia, Poland), who have with similar or lower levels of expenditure achieved higher results in education. Therefore

structural reforms mean to consider how to reform the sector to achieve the best results or maintain the same results but with less resources.13 Reforms up to now mainly have been concerned with the reduction of

expenses in the existing institutions or sector policies correcting theconsequences of short sightedness of the previous year. Functions that areconsidered less essential are removed and expenses for ministry programmes are reduced. On the other hand the evaluation of impact on thequality of service and its availability often are of secondary importance. Areview of the structure of state institutions and centralisation of support

functions has taken place. A popular and visible reform was the merging of government agencies, restructuring and as a result reduction in their numbers. Several changes were addressed at the reduction of inefficientaspects in the education and healthcare systems. Continuing the work fromthe sustainability (also from the states financial sustainability) perspectiveit is important that the increase in effectiveness of general education reflectthe demographic trends and aims to achieve a long term sustainable student-teacher ratio and network of education institutions. A programme for reformof professional education has been developed and higher education reforms

are being planned aimed at preventing the overlapping of programmes andat the distribution of finances based on qualitative indicators.14 The actions of the government have to be gradually reoriented from

crisis management measures to sustainable development. The work onstructural reforms had so far been more oriented towards the introduction of

11 PISA (Programm for International Student Assessment) PISA is OECD developed programmewherein 15 year old students are assessed simultaneously three times a year in more than 10 countries.4,500 to 10,000 students usually participate from each country.12 Supra note 4.13

Ibid .14 Ibid.




austerity measures and now the second stage has started where theimplementation of reforms will further the competitiveness of the state,economic growth and effectiveness of public administration. The Reform

management group was approved in 2009 to ensure structural reforms in public administration, promote open budgeting, reduction of bureaucracyand economic stimulation as well as to ensure the participation of thesociety in budgeting, implementation of reforms and other significant statelevel decision making in the drafting of the bill On state budget for 2010.15

On the whole evaluating the functions of the state and the possiblerational and efficient use of state budget funds progress has been achieved inthe determination of reduction of resources based on the results of

evaluation of functions and tasks in an attempt to discontinue the linear approach towards reduction of resources. Although an agreement has beenreached regarding the goalssmall and efficient administration, expansion of the internal and external market for the Latvian economy, promotion of employmentwork should be carried on regarding the clear definition of basic principles for further structural reforms, the active implementation of social security measures, measures included in the economic recovery planfor promotion of entrepreneurship and attraction of investments, measuresto provide support for establishing micro enterprises and business, in depth

evaluation of public administration functions by enhancing the evaluationmethodology and the introduction of the one stop agency principle for provision of services.16

As stated by the Prime Minister V. Dombrovskis, the ministries shalldraft their proposals in accordance with principles and directions of further structural reform agreed upon by the reform management group. These will be reviewed together with the social and cooperation partners of governmentand an agreement will be reached on the procedure and reportingmechanisms for the introduction of each individual reform measure.

Ministers have to understand that there is no distinction between myministry and other ministries. This is the joint work of the government for

15 July 9, 2009. Ministru prezidenta r kojums Nr. 296 Par reformu vad bas grupu [Decree of the

Prime Minister No. 296 On Reform Management Group] (LV, 107 (4093), July 9, 2009) [spk ar July 9, 2009].16 Papildus informciju par Reformu vad bas grupu skat t Valsts prvaldes reformu dienasgr mat,[Information on the Reform Steering Group, see Public Administration Reform Diary],http://piedaliesreforma.blogspot.com/search/label/RVG (referred on June 11, 2011) un Reformu

vad bas grupa: uzskt s reformas jturpina konsekventi realiz t [ Reform Management Group: The

Reforms Should Continue to Consistently Implement ], http://piedaliesreforma.blogspot.com/2009/10/reformu-vadibas-grupa-uzsaktas-reformas.html (viewed on June 11, 2011).




the future of the state and requires reforms in its broadest sense. The keyresults of the structural reforms are measurable in terms of benefit to thesociety-provision of qualitative and accessible public services to the

inhabitants by increasing the efficiency of public administration. The goal of the reforms is to achieve the efficient and qualitative performance of statefunctions with the existing resources. However structural reform is not amagical tool that would within a moment provide additional savings in the budget. Structural reforms are not exactly the same as budget consolidation.In other words the fruits of labour, how successfully the state reducesfunctions that are miscellaneous and achieves the efficient administration of state resources will be reaped gradually. Work on the enhancement of administration of state assets-state enterprises and property-was commenced

in 2010 defining the future model for administration of state enterprises thatinvolves the determination of operational aims of the enterprises andmonitoring the achievement of these aims, involvement of professionalmanagement, determination of transparent recruitment procedure for topmanagement and transparency in the choice of suppliers and cooperation partners. Serious work should be carried on regarding enhancement of statecompetitiveness: increasing productivity and ensuring the ever increasingcreation of added value in the economy based on the involvement of scienceand research in production as well as direct internal and external

investments in the state economy. Work has been started on the firstcomprehensive state competitiveness assessment, the results of which will be available in the first of the next year to successfully tackle thecompetitiveness issue. This assessment will form the basis for thedevelopment of a comprehensive state competitiveness monitoring system. 17

II. O N LATVIAS STRATEGIC DEVELOPMENT PLAN

The monitoring of the implementation of Latvias economic

stabilisation and growth revival programme is carried out within theframework of Latvias strategic development plan for 2010-2013.18 Themain tasks carried out in the field of public administration reforms in 2010

17 Divi gadi vad b: ce uz Latvijas ilgtsp j gu izaugsmi! [Two Years in Power: Road to LatviasSustainable Growth], http://valdisdombrovskis.lv/divi-gadi-vadiba-cela-uz-latvijas-ilgtspejigu-izaugsmi/ (viewed on June 7, 2011) un http://www.diena.lv/sabiedriba/politika/dombrovskis-divi-gadi-vadiba-cela-uz-latvijas-ilgtspejigu-izaugsmi-770720 (referred on June 7, 2011). 18 Ministru kabineta April 9, 2010 r kojums Nr.203 Par Latvijas Stratisk s att st bas plnu 2010-

2013.gadam. [Cabinet of Ministers April 9, 2010 Order Nr.203 The Latvian Strategic Development Plan 2010 to 2013] http://www.likumi.lv/ doc.php?id=208079 (viewed on June 10, 2011).




are the assessment of state functions and expansion and strengthening of theunified remuneration system.

The administrative law functions can be divided as follows:

The first administrative law function is to enforce the provisions of thelegal sources valid in the Republic of Latvia. The Europeanization of administrative law has developed comprehensively and there is no area of regulations that is not subject to regulation by European legal norms. Onlythose who know these laws can influence its contents. 19 The secondadministrative function is to manage, regulate relations for example betweenthe ministry and municipality (derived public person) or between twomunicipalities (derived public persons). The third administrative lawfunction is to determine and regulate relations between public

administration institutions and private persons or other participants of administrative law functions such as non governmental organisations.However attention should be paid to the fact that along with the regulativenature of the action administrative law management functions are alsodefined. Law is a tool for management. Law is a phenomenon to managethe actions of participants of administrative law relations. All state functionsare equally important and all the state functions are assigned to the publicadministration for execution (implementation).20

The state has basic functions that it has to fulfil. Otherwise there arises

the question whether it is still a state. However the other functions can bediscussed and political decisions should be taken. If as a result of thediscussion the conclusion is that the state has to perform a certain functionalthough there is a lack of financial resources, the institution performing thefunction cannot be liquidated. When the economic situation improves it canstart performing the full range of functions. It is much more expensive anddifficult to create an institution and renew the human resources to performthese functions. Moreover in case of full liquidation there is a waste of civilservice resources and efficient civil servants are a state resource. Therefore

during the transition period (economic crisis is a cyclic process) the

19 Paine F.J., Eiropas administrat vo ties bu ietekme uz dal bvalstu administrat vm ties bm. Likumsun Ties bas, 2003, apr lis Nr.4, Citts pc: J.Naisionis. Administrat vs ties bas .R ga: SIABiznesa augstskola Tur ba [Paine F.J., European Administrative Law Impacts On National Administrative Law, LAW AND JUSTICE, 2003,apr lis No.4. Quoted from: J. NAISIONIS, A DMINISTRATIVE L AW , Riga: SIA Business Administration Turiba], 2009, 39. Lpp.20

Jnis Naisionis, Administrat v s ties bas, R ga: SIA Biznesa augstskola Tur ba [J. NAISIONIS, A DMINISTRATIVE L AW , Riga: SIA Business Administration Turiba], 2009, 39-40 lpp.




performance of certain functions should be suspended or performed partially.21

Methodological recommendations for determination and analysis of

public administration functions22

define that it is recommended not to plansmall functions (less than 100,000 LVL) as separate (with a special name),as well as recommended not to plan too expensive functions that exceed 10million LVL except in cases when these functions are clearly defined andnot divisible into smaller functions/tasks. The recommendations state thatthe following assessment should be used to determine the Ministrys priorities for a function (5-most highly assessed function, 1-least assessedfunction) according the highest assessment to only a limited number of functions and tasks: 0performance of function/task is discontinued and will

not be continued by the public administration system. 1Function/Task isinsignificant, discontinuation of its performance will positively influence thedevelopment of entrepreneurship, function or task is not characteristic of the public administration and can be assigned to other legal entities. 2Functionis not directly connected to the achievement of aims of public administrationand refusal to perform it or discontinuation of its performance for a certaintime period does not cause any harm to the provision of essential publicadministration services. It can be taken over by other legal entities. 3 Function can be performed by private persons, discontinuation of its

performance by the public administration sector does not have anysignificant impact on the quality of services, the results of performance of the function are used as interim results for implementation of publicadministration functions and services. It can be assigned to other legalentities after assessing the benefits and drawbacks. 4Performance of thefunction is important for public administration institutions to provideservices that can only be partially provided by the private sector,achievements and services are used as interim results or main results for the process of provision of most essential administrative services. 5Basic

functions of public administration, the assignment of these functions to the private sector can hinder the observance of equality principle. Theseservices are not provided by the private sector. The assignment of theseservices and functions to the private sector is not possible.

21 Gatis Litvins, Egils Levits kritiski v rt valsts prvaldes reformas. Jurista Vrds Nr.19 (614) 2010gada11. maijs [ Egils Levits Critically Evaluates State Administration Reforms],http://www.juristavards.lv/index.php?menu=DOC&id=209384 (referred on June 7, 2011).22 Metodiskie ieteikumi valsts prvaldes funkciju noteikanai un anal zei [MethodologicalRecommendations for Determination and Analysis of Public Administration Functions],

http://www.mk.gov.lv/lv/vk/funkciju-audita-komisija/funkciju-izvertesana/funkciju-izvertesana-2009/( referred on June 7, 2011).




The working group for assessment of functions prepared a draft proposal for the optimisation of functions financed by the state budgetwhich as precisely stated foresees savings of 78.8 million Lats in the 2011

budget as a measure of consolidation. The working group forecastsadditional savings of 5 to 8 million LVL a year by implementing mediumterm measures. The assessment drafted is based on the optimisation of thosestate functions and services that pose minimum social or economic risks.Therefore the proposals include the reduction or suspension of functionsthat are performed in the most efficient manner but those that are not animportant priority in crisis situations. Assessing the reductions by functional blocks, policy making and overall government office (Cabinet of Ministers,ministries, central ministerial offices) functions are to be reduced by 8.2%;

social order, security and defence6%; planning of economic activities,support, subsidies, planning grants and support for regions9.1%; health block2.7%; culture, sport and recreation7.1%; education and science 2.3%; social security0.48% and public administration institution expenses 4.7%. The issues regarding usefulness of rent of premises for necessities of state institutions, optimisation of IT systems, the drawbacks regardingflexibility of the state administrative structure law in implementing thereforms quickly and successfully etc. were elaborated during thediscussions.23

The recommendations of the Cabinet of Ministers No.2, Procedure for creation of state administration structure 24 determine the tasks of supportfunctions that should be carried out to ensure the successful provision of basic functions. The support functions shall determine in accordance with job classification that one position can ensure the provision of severalsupport functions. The standardisation of processes furthers the provision of support functions and observes the principles of proportionality usingcomparative internationally used economic efficiency indicators asguidelines for direct state administrative operations. Applying the

abovementioned economic efficiency indicators the specifics of operationsof state institutions should be taken into account: one specialist (workload)shall be responsible for 100 employees (workload); one payroll accountantshall be responsible for 200 employees (workload) or carry out at least 9500

23 Valsts prvaldes funkciju izv rt ana [ Evaluation of Public Administration Functions],http://www.mk.gov.lv/lv/vk/funkciju-audita-komisija/funkciju-izvertesana/ (referred on June 17,2011).24 Valsts prvaldes iest des strukt ras izveidoanas k rt ba, MINISTRU KABINETA IETEIKUMI Nr. 2,December 14, 2010 [The recommendations of the Cabinet of Ministers No 2nd December 14, 2010

Procedure for Creation of State Administration Structure],http://www.likumi.lv/doc.php?id=222935 (referred on June 7, 2011).




transactions per year; one information and communications technologyspecialist (workload) shall provide technical support for 133 users withinone administrative territory; one purchase officer shall manage 5.45 million

LVL per year. The centralisation of functions at the ministerial level andcooperation in public administration by concluding inter departmentalagreements on the provision of support functions, providing they ensure costefficiency and are not in contradiction with requirements of international(incl. European Union) normative enactments, shall promote the provisionof support functions. 25

The implementation of the European Social Fund (ESF) projectSupport for implementation of structural reforms was started in 2010which foresees the involvement of independent experts for in depth research

for carrying out further audit of functions as well as assessment of impact of structural reforms and management of human resources in publicadministration. Therefore significant work was carried out in 2010 in the provision of procurement procedure and the implementation of severalresearch projects was started, whose results will be used for the qualitativeimplementation of measures planned for 2011 or for the assessment of their impact. 26

Public administration institutions have carried out a significantmeasure to promote the centralisation of functions. The financial resources

for public procurement can also be saved if procurement were centralised.At present there is still a lot of procurement in Latvia that is carried outseparately by each institution forming separate procurement committeesthereby wasting administrative and time resources. Due to the lack of knowledge and experience of procurers the procurement procedures are not planned on time and the preparation process is inefficient and as a resultconclusion of procurement agreements are delayed. There is still thefragmentation of similar procurements and purchases of similar goods andservices are made for different prices which affects the efficient use of

budget funds. State, municipalities and their institutions have to find waysof ensuring the effective use of financial resources. The proper organisationof public procurement is essential to ensure the most effective use of budgetresources and controlling costs and rationalising processes, standardisedcentralisation of procurement of goods and services and the centralisation of the respective procurement institutions is one of the possible ways to ensure

25 Ibid.26 Par Latvijas Strat isk s att st bas pl nu [ About the Latvian Strategic Development Plan], Latvijas

Vstnesis January 28, 2011 16 (4414) http://www.vestnesis.lv/body_print.php?id=225066 (referredon June 7, 2011).




that. In a situation where budget funds are limited the problem is aggravatedfurther and efficient procurement policy in Latvia is becoming ever moretopical as it is a means of saving budget funds in particular in situations

when the number of employees in public administration should be reducedand the best value for money should be provided.The European Union and Latvia have concluded a memorandum of

understanding,27 which by the way foresees the compulsory centralisation of municipality procurements, making it the duty of municipalities to plan their procurement policies in their municipalities defining procurements thatwould be made on a centralised basis and those that are eligible to be made by the municipal institutions.28

The reform of support functions of state organisations means

combining the services or purchasing certain services from the private sector.For example research carried out in Great Britain shows that opencompetition in the provision of public services has resulted in savings to thetune of 20% for tax payers29 and similar results are shown by research inother countries. The possibility and necessity of assigning public functionsto the private sector should be considered in the process of structuralreforms itself wherein strategic analysis, project development and audit are performed by experts and specialists in the field according to internationalexperience and not by civil servants who have other functions. 30

The Ministry of economics has carried out the centralisation of severalsupport functions at the ministerial level thereby providing accounting, personnel documentation and information technology functions for severalsubordinate institutions. Centralisation of audit functions was done at theMinistry of Interior. The Ministry of Education and Science provides personnel management functions also with regards to heads of institutionsas well as partially carries out procurement for subordinate institutions. 31 Further information on structural reform can be found in the informative

27 Eiropas Savien bas un Latvijas Republikas Sapraan s memorands, Sapraan s memoranda

treais papildin jums [Supplemental Memorandum of Understanding (Third addendum to theMemorandum of Understanding) Between The European Union and the Republic of Latvia]http://www.fm.gov.lv (referred on June 12, 2011).28 Una Skrastia, , International Scientific-PracticalConference Business, Studies and Me, auu koleda, February 24, 2011, Nav publicts.29 Understanding the Public Services Industry: How Big, How Good, Where Next?, A review by Dr.DeAnne Julius CBE, Department for Business Enterprise & Regulatory Reform, July 2008www.esternalizzazioni.it/public/.../Julius_Understanding_the_Public_Services_Industry_2008.pdf (referred on June 11, 2011). 30 Supra note 4.31

Veikti btiski struktur lie prk rtojumi valsts prvald [Valsts kanceleja], June 3, 2011,http://www.mk.gov.lv/lv/aktuali/zinas/2011gads/06/030611-vk-03/ (referred on June 11, 2011).




report On structural reorganisation in public administration. 32 Auditing of several functions, drawing conclusions, involving

independent experts and ensuring the discussion of results was carried out

throughout the year 2010. For example within the framework of the audit of functions in the field of supervision of education institutionsrecommendations were put forward that help decrease the scope of accreditation of standard programmes in general education and for professional education programmes that are supervised and waive thelicensing committee for tertiary education, decrease the amount and contentof statistical information required as well as prevent the overlapping of control of education institutions at various administrative levels (Ministry of Education and Science, municipality, internal audit). With the

implementation of the recommendations of the audit of functions the timeresources spent by education institutions on licensing and accreditation will be reduced. 33

The audit of functions in the field of supervision of commercialenterprises put forward different recommendations for each of the analysedeconomic spheres starting from food production, construction to trade andcommon recommendations for the simplification of insolvency procedures.The spheres where further research and analysis was necessary were alsoidentified, e.g. simplification of the document storage and archiving system,

promotion of unified defining and structuring of services, simplification of applications, submission of complaints and enquiries and their review,determination of price lists for paid services, administration of licences for external trade, reorganisation of several sub branches in the constructionsector, specifying requirements for public debate, updating custom codes,notification of changes in records of commercial register, removal of product samples for testing as well as improvement of the administrative procedure. 34

The law on remuneration for officials and employees of state and

municipal institutions came into force on January 1, 2010.35

The aim of this

32 Informat vais ziojums Par struktur lajiem prk rtojumiem valsts prvald

http://www.mk.gov.lv/lv/aktuali/zinas/2011gads/06/030611-vk-03/ (referred on June 11, 2011).33 Par Latvijas Strat isk s att st bas pl nu [Cabinet of Ministers April 9, 2010 Order Nr.203 The

Latvian Strategic Development Plan 2010 to 2013]. Latvijas Vstnesis January 28, 2011, 16 (4414)http://www.vestnesis.lv/body_print.php?id=225066 (referred on June 7, 2011).34 Ibid. 35 December 1, 2009 likums Valsts un pavald bu instit ciju amatpersonu un darbinieku atl dz bas

likums [ Law on Remuneration of Officials and Employees of State and Self-Government

Authorities] (LV, 199 (4185), December 18, 2009) [st jas spk January 1, 2010],http://www.likumi.lv/doc.php?id= 202273&from=off ( referred on June 17, 2011).




law is to ensure equal conditions for determining the remuneration of officials (employees) of state and municipal institutions. To ensure theextension and consolidation of the unified remuneration system the existing

job catalogues have been appended including in it those employed inmunicipalities, courts, prosecutors office, state founded higher educationinstitutions and Finance and Securities trading committee. The jobcatalogues for state and municipal institutions have also been adopted by theforce of law so that they are binding upon these institutions even when theyare not a part of the executive body. The extension of the job classificationsystem and consequently the inclusion of the jobs in the unifiedremuneration system is a significant step towards transparency andeffectiveness of remuneration in the public sector.36

III. PROCEDURE FOR ORGANIZATION OF STRUCTURES OF PUBLIC

ADMINISTRATION I NSTITUTIONS

The recommendations No.2 Procedure for organisation of structuresof public administration institutions was approved at the meeting of theCabinet of Ministers on December 14, 2010. The recommendationsdeveloped in accordance with the 4th clause of Article 17 of the Stateadministration structure law stipulate the procedure for organisation of

structures of these institutions. The recommendations provide guidelines for optimal number of direct subordinates, heads and deputy heads of structuralunits, desired number of levels of structural units as well as define the basicand support functions of the institution. 37 The recommendations determinethe procedure for organisation of structures of public administrationinstitutions (hereinafter-institution) with the aim of achieving a unified andclear organisation of the institutions institutional structure, optimal planning of human resources (hereinafteremployees) and efficient andeffective use of state budget funds. The institutions structure is organised in

accordance with its goals, functions and tasks determined in the normativeenactments in order to achieve the goals effectively both economically andfunctionally as well as to ensure the qualitative provision of services toinhabitants. A structural unit is a component of the institution, which hascertain independence, special tasks and functions and has its own head inaccordance with the institution law and regulations. The structure of the

36 Par Latvijas Strat isk s att st bas pl nu [Cabinet of Ministers April 9, 2010 Order Nr.203 The

Latvian Strategic Development Plan 2010 to 2013], Latvijas Vstnesis January 28, 2011, 16 (4414)

http://www.vestnesis.lv/body_print.php?id=225066 (referred on June 7, 2011).37 Ibid.




institution is formed to ensure the performance of functions and tasks in oneor several branches (sub branches) or cross-branch policy areas(hereinafteralso areas of responsibility). Very small institutions do not

have separate structural units or a deputy head except in cases when such isrequired by international normative enactments (incl. European Union) or if the institution is responsible for two areas. The central apparatus of theinstitution is formed by two levels of structural units: higher level structuralunits (e.g. departments) and lower level structural units (e.g. sections). Thehead of the institutions taking into account efficiency considerations andeconomic effectiveness can additionally form more than two levels (e.g.sector or directorate) to ensure goal oriented and functionally effectiveoperations. Taking into account the specifics of its operations the institution

can form territorial structural units (e.g. administrative board). The same prerequisites that are foreseen for organisation of structure of centralapparatus must be observed for organisation of structure of territorial units.Forming a lower level structural unit the principle that the optimal number of immediate subordinates that a manager is capable of effectivelymanaging is 5-7 people should be observed. Smaller structural units can beformed in exceptional cases taking into account the tasks and functions of the structural units. The post of deputy head of a structural unit can beformed if there are at least 10 employees in the structural unit or the

structural unit has at least two areas of responsibility. Higher-level structuralunit heads may not have more than two deputies. If the higher-levelstructural unit consists of lower level structural units the heads of structuralunits of lower level shall assume the responsibility of deputy heads of higher-level structural units. If the higher-level structural unit is big or very big and there are more than two areas of responsibility under its authority,the head of the higher-level structural unit can have one deputy who is notthe head of a lower-level structural unit. Hierarchy in the branches and sub branches shall be observed, lower level structural units made subordinate to

higher-level structural units while forming the structure of the institution. Inaccordance with the specifics of the areas of responsibility heads of institutions may form independent (lower-level) structural units that are notsubordinate to higher-level structural units. Certain positions in theinstitution may be report directly to the head of the institution withoutforming a part of the structural unit or being subordinate to head of a higher-level structural unit.38

38

Valsts prvaldes iest des strukt ras izveidoanas k rt ba, MINISTRU KABINETA IETEIKUMI Nr. 2.December 14, 2010 [Cabinet of Ministers December 14, 2010, The recommendations No. 2




Traditionally in accordance with management theory it is accepted thatthe optimal number of subordinates that can be effectively managed by amanager is from three to eight. To promote the organisation of efficient

public administration by reducing the existing small structural units (upto 4employees), the recommendations propose forming structural units with fiveto seven subordinates (average structural unit in accordance with jobcatalogue for state and municipal institutions) and therefore requests headsof institutions to look into the possibility of merging functions to formaverage or big structural units thereby reducing fragmentation and number of heads of different levels. 39

In order to promote the effective organisation of support functionswhile implementing the necessary measures including the centralisation of

functions at the ministerial level, standardisation of processes andagreements at the inter departmental level on the provision of supportfunctions, the recommendations offer indicators based on international practice for determining the number of employees for carrying out varioussupport functions. 40

The main tasks planned to be fulfilled in the first quarter of 2011 is theaudit of two functionsupervisions of commercial enterprises andsupervision of education institutions. The audit of functions was started on November 17, 2009 and was carried out all through 2010 with inter

institutional working groups and involvement of independent consultants.The progress of audit was discussed numerous times in the Committee for audit of functions and in other related consultative institutions such as theReform management group and the results of the audit was widely discussedamong the direct stakeholders as well as in debates during the annualconferences for best practices in administration and partnership. As the auditof functions was funded by the EU ESF project Reducing administrative burden and simplification of administrative procedure, in accordance with project results a Plan of measures for reducing administrative burden was

developed for each audit result. The approval and drafting of the plans for review by the Cabinet of Ministers shall be concluded in the first quarter of 2011.41

Procedure for Organisation of Structures of Public Administration Institutions]http://www.likumi.lv/doc.php?id=222935 (referred on June 7, 2011).39 Par Latvijas Strat isk s att st bas pl nu [Cabinet of Ministers April 9, 2010 Order Nr.203 The Latvian Strategic Development Plan 2010 to 2013] Latvijas Vstnesis January 28, 2011, 16 (4414)http://www.vestnesis.lv/body_print.php?id=225066 (referred on June 7, 2011).40

Ibid. 41 Ibid.




The informative report of the State Chancellery Significant structuralreorganisation carried out in public administration 42 concludes that amajority of institutions have carried out the optimisation of functions and

merging of structural units thereby reducing the number of heads of units.Significant reorganisation was carried out in the Central Statistical Bureauand there is now only one deputy head in structural units with more than 10employees and structural units that had less than five employees wereliquidated. The State revenue service that was divided into several levelswas also reorganised into a single level organisational structure. There wasalso a reduction in the number of employees of the Lottery and Gamingsupervision inspectorate by 45.7% in 2010; the functions were reorganisedand as a result of the reform a compact efficient institution was formed. Thenumber of positions in the State Treasury was reduced by 33% in 2010; thecentral apparatus and functions of implementation of state budget andcontrol were optimised and full remote customer service was introduced.

Implementing public administration structural reforms it is essential toensure efficient administration of institutional and human resources thatwould provide for the optimal use of budget funds and promote applicationof unified requirements in the administration processes. Several institutionsstarted structural reorganisation in 2009 reviewing the scope of functions,

number of employees and ensuring the economy of budget funds. For example cardinal structural reforms were carried out in the Ministry of Agriculture on July 1, 2009 to simply the bureaucratic procedure andorganise an efficient ministerial structure by reducing the number of leadingmanagement positions in the ministry and delegating more responsibility toheads of structural units (departments, independent sections). 43

The Latvian civil service cannot be termed efficient. Civil servantshave certain qualifications and they serve in the public service. They areappointed by administrative enactments. The state cannot be managed as a private enterprise, but this is not always taken into account and at presentthere is a misconstruing of rotation of civil servants. Often it is consideredas demotion of civil servants, although it should be the other way round.Rotation has a range of legitimate goals. For example it prevents the civil

42 Veikti btiski struktur lie prk rtojumi valsts prvald, Valsts kanceleja [ Significant Structural Reorganization Carried Out in Public Administration], State Chancellery June 3, 2011,http://www.mk.gov.lv/lv/aktuali/zinas/2011gads/06/030611-vk-03/ (referred on June 11, 2011).43 Informat vais ziojums Par struktur lajiem prk rtojumiem valsts prvald

[Informative report The Structural Reforms in Public Administration],http://www.mk.gov.lv/lv/aktuali/zinas/2011gads/06/030611-vk-03/ (referred on June 11, 2011).




servant from monotonous work and ensures the enhancement of competences. The opinion in Western Europe is that civil servants must berotated every five years. If it does not happen then it is considered to be a

negative feature. Latvia should introduce political civil servant status. Such positions are characteristic for majority of parliamentary republics. For example in Latvia it could be introduced for the State Secretaries of Ministries. At present there is often some sort of friction between theMinister and the State Secretary. The State secretary is publicly discreditedin order that the Minister can get rid of the state secretary. Consequentlythe civil servant is changed in such an unacceptable manner. Introducing a political civil servant status a simpler rotation of civil servants can beensured. There would be a link between the political (minister) and the civilservant. A procedure for rotation between political civil servants andordinary civil servants and vice versa should be developed. Thereforeamendments should be made in the Civil Service Law. There is nodistinction whether the civil servants performance is unsatisfactory on theone hand or the particular position is not useful on the other hand. If thecivil servants performance is not satisfactory it does not mean that the position should be liquidated. Instead further qualification or dismissal of the relevant civil servant should be considered.44

IV. STRUCTURAL CHANGES IN PUBLIC ADMINISTRATION

Ministries are the leading public administration institutions. EgilsLevits, presenting a paper at the Latvian academy of sciences in 2010critically evaluated this process and underlined that the reduction of ministries will not affect public administration. It will leave an impact onthe decision making process. The reduction in number of ministries cannot be the end goal. In comparison to other parliamentary democracies the

number of ministries in Latvia is below average. Discussions should not beabout the formal liquidation of ministries but on whether the particular sector is to be developed at the governmental level. The cabinet of ministersimplements various policies and the ministries reflect the priorities of theexisting political powers. For example in France there is a Future ministrywhich does not have its own administration; however the political parties in power have acknowledged it as important. Egils Levits points out that the

44 Gatis Litvins, Egils Levits kritiski vrt valsts prvaldes reformas [ Egils Levits Critically

Evaluates State Administration Reforms] JURISTA VRDS Nr.19(614) 2010.gada 11.maijs,http://www.juristavards.lv/index.php?menu=DOC&id=209384 (referred on June 7, 2011).




implement the common state policy and therefore such an importantinstitution must not be liquidated.48

The State chancellery was however reorganised by a decree of the

Prime Minister Valdis Dombrovskisthe posts of both deputy directors of the State chancellery were liquidated and all the structural units weredirectly subordinated to the director of the chancellery. On the other handthe Political coordination department will be transformed into the Strategicanalysis department whose main tasks would be to prepare analyticalassessment reports on actual political action issues, participation incoordination and implementation of unified state policy planning, drafting proposals for state development priorities, developing governments action plan, development and coordination of public administration and human

resources development policy and others. The State chancellery is thecentral public administration institution that is directly subordinated to thePrime Minister. The main task of the institution is the provision of operations of the Cabinet of Ministers, development and implementation of public administration development policy as well as to handle thecommunications between the Cabinet of Ministers and the society. On thewhole ten departments and sections work directly under the Director of theState chancellery. One hundred and nineteen employees including the PrimeMinisters office work in the State chancellery. The review of functions of

the State chancellery will be continued this year.49

B. Reorganization of Ministries

The reorganisation of many ministries has taken place over recent years,e.g. by the Cabinet of Ministers decree No. 726 On optimisation of functions and sharing of financial resources between the Ministry of Healthand the Ministry of Agriculture, from the 1st of January 2011 the Ministryof Agriculture has taken over from the Ministry of Health the rights and

obligations for registration of veterinary medicine, its manufacturing andevaluation of suitability of its wholesalers and licensing of veterinary pharmacies. 50

48 Gatis Litvins, Egils Levits kritiski v rt valsts prvaldes reformas, Jurista Vrds Nr.19 (614) May11, 2011, [ Egils Levits Critically Evaluates State Administration Reforms],http://www.juristavards.lv/index.php?menu=DOC&id=209384 (referred on June 7, 2011).49 Reorganiz Valsts kanceleju. [ Reorganize the State Chancellery] , http://www.delfi.lv/news/national/politics/reorganize-valsts-kanceleju.d?id=36226373 (referred onJune 12, 2011).50

MK r kojums Nr.726 Par funkciju optimizciju un finanu resursu prdali starp Vesel basministriju un Zemkop bas ministriju [Decree of the Cabinet of Ministers No. 296 On Function




By the Cabinet of Ministers decree No. 676 On liquidation of theMinistry for Regional development and municipal affairs 51 from theDecember 31, 2010 the Ministry for regional development and municipal

affairs was liquidated by merging it with the Ministry for Environment toensure the enhancement of public administration institutional system andoperational efficiency in accordance with the clause 1 of the part 4 of theArticle 15 of the State administration structure law.

However, the chairperson of the Latvian chamber of commerce andindustry (LTRK) anete JaunzemeGrende objected to such delegation of functions to the Ministry of Environment expressing the opinion that thedevelopment and supervision of state policy planning documents and National development plan as well as monitoring of public services should

be concentrated in one state institution. It helps avoid fragmentation of public administration and promotes the development of small efficient public administration, incl. promoting the use of essential electronicservices by entrepreneurs. Reviewing the Latvian public administrationsystem structure, the LRTK believes that the State chancellery should be theinstitution responsible for the execution of the abovementioned functions. Itis especially important during the period, when radical structural reformsand their preparation are required for the state, which that this powerfulcoordination centre should be under the supervision of the Prime Minister.

Entrepreneurs believe that the merging of such functions should be avoidedwhere policy conflicts may arise within one institution (e.g. promotion of economic development (investment attraction policy) and limitingdevelopment from the environmental protection perspective), and therebyhinder economic recovery and even worsen the business environment. 52

Merging two ministries from the existing numerous ministries isneither the wrong nor punishable action. In fact, it is just the opposite. In acountry with 2 million inhabitants eventually one has to de factounderstand that we can afford a small but efficient public administration

which can never be associated with a number of ministers exceeding 10, preferably, including the Prime Minister. The crux of the issue is not the

Optimization and Financial Resources Between the Ministry of Health and the Ministry of

Agriculture ] December 13, 2010 (prot.Nr. 71 37.§).51 November 22, 2010, MK r kojums Nr.676 Par Reionls att st bas un pavald bu lietu ministrijaslikvidcijas nodroinanu [Decree of the Cabinet of Ministers No. 676 On Liquidation of theMinistry for Regional Development and Municipal Affairs] (LV , 186 (4378), November 24, 2010)[st jas spk November 22, 2010].52 LTRK: RAPLM funkciju nodoana Vid M ir sasteigta [ LCCI: MRDLG Mean Transfer Function

Avg M Is Hurried ]. http://www.delfi.lv/news/ national/politics/ltrk-raplm-funkciju-nodosana-vidm-ir-sasteigta.d?id=35184385 (referred on June 15, 2011).




number of ministers but the rational efficient division of state functions.Such a division which would promote goal oriented development increasethe living standards of inhabitants at the same time structurally not

programming in the division of functions predictable possible conflicts of interests between the various sectors, stakeholders or even territories. Notmentioning the risk of demolishing progressive, growth promotingstructure that was built over the years, thereby pushing back progress over a period of at least 8 years. 53

Despite the contrasting opinions the Ministry of environmental protection and regional development has started functioning with RaimondsV jonis becoming the Minister of this merged structure. It is a fact thatstructural changes within the ministry are yet to be commenced (at present

the structure and functions have been automatically put side by side under the same roof) and the experience of the Minister V jois should be positively evaluated. However, careless steps carrying out internal reformscould significantly change the implementation of separate rather importantfunctions leading even to degradation,54 as pointed out by Mris Kuinskis,while analysing the benefits and threats of such mergers.

First of all, there is a reduction in administrative management. Even themaintenance of the Ministers office would cost some money notmentioning accounting, internal audit, personnel department etc..

Secondly and most essentially this merger is favourable for theefficient use and administration of European Union Structural funds. Themunicipalities have been the main beneficiaries and stakeholders in theEuropean financing for environment for water management infrastructureand waste management systems which were managed by the former Ministry. Similarly the activities from EU funds for improvement of citysurroundings cross border cooperation and IT etc. that have been taken over will only be successfully mobilised by the administration of these funds,efficient use and supervision.

Thirdly there is a possible increase of joint weightage of theMinistry within the Cabinet of Ministers. Unfortunately it is the traditionin Latvia not to evaluate the ministry according to the importance of thefunctions but according to the amount of money the ministry manages.That is why the most desirable ministries among politicians have beenthe Ministries for Transport, Economics, Defence and Finance. On the

53 M ris Ku inskis: Apvienojas divas ministrijas. Ko t l k?[ Maris Ku inskis: Merging the Two

Ministries. What Next?], http://www.delfi.lv/news/comment/ comment/maris-kucinskis-apvienojam-

divas-ministrijas-ko-talak.d?id=36112876 (referred on June 11, 2011).54 Ibid.




other hand Ministry for regional development and municipal affairs(RAPLM) connected with municipalities and planning has never causedany political fights in the process of forming the government. Therefore

it has been difficult to force the peer ministers and the Prime Minister toevaluate the importance of the functions.In relation to supervision and methodical management of

municipalities most probably there would not be any gains or losses as sucha function requires constant, methodical work which is mainly performed bythe civil servants. Moreover retaining the specialists of RAPLM, it could be performed sufficiently in professional manner. The involvement of theMinister is only necessary in case of infringements or disputes. However theleast skill required from the Minister responsible is to at least talk about the

responsibilities of the heads of municipalities or even threaten to dismissone. It is another matter that the minister has to be able to understand all theoperations of municipalities and should more often think about themunicipalities and not just the problems. Work on the development of onestop agencies in municipalities should be started immediately. 55

C. Threats of Mergers

Unfortunately the supervision of municipalities and methodical

management (as well as administrative territorial reforms) is the mainfunction with which the major part of the society associates the work of ministry responsible for municipalities. One of the basic goals why such ahuge part of specialists were in favour of formation of a separate ministryeight years ago has moved to the background. The basic goal is to increasethe role of municipalities and involve them in joint goal oriented work for the development of the state. Forming a powerful regional level that wouldcoordinate and take over the major part of operations of state institutions inthe regions, be involved in the overall national planning system, make goal

oriented use of European structural funds, it becomes ever the more possibleto influence the dominance of the sectoral ministries (we know better whatyou need) over the interests of the inhabitants of the territories. Along withthe development of the National development plan for 20072013 theministry has undertaken responsibility for all planning of overall statedevelopment planning and supervision of plan, the improvement of which isstill a topical item on the agenda. These, in particular, above mentionedtasks are those that could prove to be threat to the development of the statein the future if they are discontinued or if just a formal approach is used. It

55 Ibid.




is possible to reduce the administrative apparatus to some extent by mergingthe ministries as well as to have an impact by merging the internalstructures.56

CONCLUSIONS

The process of enhancement of public administration in Latvia is oneof the elements of states with the rule of law. The most significant problems in the organisation of public administration have been underlinedin the paper but these certainly are not the only ones. The stateadministration structure law provides the necessary regulation to form anefficient public administration. However, nevertheless discussing about

structural reforms in Latvia and their progress, people with weak nervoussystems sooner or later fall prey to the feeling of hopelessness. On the onehand there are people with opinions and vision on exactly what should bechanged and improved in the current public administration. On the other hand these news ideas usually are not practically implemented. Seeingsuch a progress of events the initial disillusion of many people changesinto despair. What is happeningIs the lack of political will the only problem or is the problem wider/deeper?57 One of the variants of theanswer can be found in the book which was published at the end of 2010

The Other Side of Innovation: Solving the Execution Challenge. It istrue that the book is mainly oriented towards innovation in enterprises,however, many of the concepts can be useful in terms of structural reformsas both innovations as well as reforms in essence are very similarin bothcases the aim is to achieve new, high quality better results with theexisting and limited resources. The main idea as emphasised by the author of mentioned book is that a new idea is a good thing but it is not enough. No matter how ingenious the idea is it should be practically implementedin life. A lot of good and valuable theoretical ideas have remained just

ideas as their methods of implementation have been wrong.

58

One of the most frequently committed mistakes in an enterprise is toentrust the practical implementation of theoretical ideas to existingstructural units with the most experience in related issues. The authors callthis unit performance engines. These performance engines in terms of their structure and number of staff are oriented towards the performance of existing tasks in the best manner possible. However to demand that this

56 Ibid.57

Supra note 5.58 Ibid.




need to be carried out constantly. Public administration has to react toactualities, new tasks, changes in legislation and the society. There should be an institution that externally and independently ensures such reaction and

implements the public administration reforms. This cannot be entrusted tothe institution heads themselves as there is a considerable self preservationinstinct in public administration. 61

The significance and impact of the decision on the development of thestate in such a decisive moment for Latvia shall be evaluated by economists,sociologists, historians and the media who already have something to say inthis matter. However, the real solution would be the answer to the question:will Latvia in the foreseeable future transform itself from a state most badlyhit by the crisis in the European Union to a state with successful and modern

economy, educated society, highly qualified work force and a place wherethe worlds most successful companies would like to invest. We are faced by a historical choiceto go back into stagnation and underdevelopment or see oneself as a strong nation that wishes to live in Latviaone of thesuccessful countries of the European Union and agree to jointly work towards the achievement of this goal.62

61 Supra note 3.62 Divi gadi vad b: ce uz Latvijas ilgtsp j gu izaugsmi! [Two Years Management: TowardsSustainable Growth in Latvian!] http://valdisdombrovskis.lv/divi-gadi-vadiba-cela-uz-latvijas-ilgtspejigu-izaugsmi/ (referred on June 7, 2011). un

http://www.diena.lv/sabiedriba/politika/dombrovskis-divi-gadi-vadiba-cela-uz-latvijas-ilgtspejigu-izaugsmi-770720 (referred on June 7, 2011).



645

BIODIVERSITY AND BIO-FUELS IN BRASIL

Vladimir Garcia Magalhães & Raziel Hain Calvet de Magalhães**

Brazil is one of the most biodiversity countries in the world and also amajor producer of bio-fuels mainly originated from sugarcane and

soybeans. However, agricultural expansion in Brazil, including the planting of sugarcane and soybeans, has caused negative impacts on Brazil’sbiodiversity by the conversion of tropical forests and other forms of natural vegetation into agricultural areas in Brazilians biomes. The Conferences of the Parties (COP) of the Convention on Biological Diversity (CBD) haveconsidered the production of liquid bio-fuels a new important issue. For theconservation and use of biodiversity the United Nations Framework Convention on Climate Change (UFCCC) recognizes that bio-fuel

production affects ecosystems and can contribute to the increased emissionof greenhouse gases. Brazilian legislation on biodiversity in general and forests protection could reduce the negative impacts of bio-fuels productionchain if they were more effective as well as legislation that regulates bio-

fuels production which stipulates that the production of bio-fuels in Brazil should not cause negative impacts to environment and therefore their diversity.

I NTRODUCTION............................................................................................ 645I. THE BRAZILIAN BIODIVERSITY ................................................................ 647II. BIO-FUELS .............................................................................................. 649III. THE CONVENTION ON BIOLOGICAL DIVERSITY (CBD) AND

BIO-FUELS............................................................................................. 650IV. U NITED NATIONS FRAMEWORK CONVENTION ON CLIMATE CHANGE

AND BIO-FUELS ..................................................................................... 651V. BRAZILIAN LEGISLATION ....................................................................... 652CONCLUSION............................................................................................... 655

I NTRODUCTION

Brundtland Report in 1987 made a global alert about climate changeon Earth and global warming due to anthropogenic emissions of so-calledgreenhouse gases as a threat to the future of mankind. Among these gasesCO2 (carbon dioxide) is named as one of the main gases responsible for

*Vladimir G. Magalhães, biologist, lawyer, Ph.D. in Civil Law, Professor of Law in Master’sProgramme in Environmental Law, Universidade Católica de Santos; research field: EnvironmentLaw.**Raziel H. C. de Magalhães, lawyer, student in Master’s Programme in Environmental Law,Universidade Católica de Santos; research field: Environmental Law.




global warming and has among its main anthropogenic sources the burningof fossil fuels and cutting or burning forests and other forms of vegetation.1

The Brundtland Report also warns, as a threat to the future of humanity,

about the loss of forests and consequent destruction of animals and plantsspecies thereby reducing “drastically” the diversity of these species andgenetic diversity among the world's ecosystems.2 In other words, reducing biodiversity which as a whole in ecosystems of our planet.

The Brundtland Report concluded that in tropics, where are mostdeveloping countries, the extensive agricultural and the expansion of conversion forest areas for use by the extensive agriculture was the maincause of biodiversity loss.3

In relation to modern bio-fuels like ethanol, the Brundtland Report in

1987 pointed to a risk of bio-fuel water pollution by organic waste resultingfrom their production.4 In view of these facts, in 1992 during the United Nations Conference

on Environment and Development (UNCED) held in Rio de Janeiro(Brazil) countries gathered with the purpose to remedy or mitigate these problems and adopted the United Nations Framework Convention onClimate Change and the Convention on Biological Diversity. Brazil hassigned and ratified both.

Therefore, as an alternative to fossil fuels in order to reduce the

anthropogenic release of greenhouse gases, Brazil began to develop andrefine the technology in bio-fuels and its use to replace fossil fuels. Amongthese bio-fuels are mainly alcohol, made from sugar cane plant and biodiesel produced mainly from soybeans.

With the increased consumption of bio-fuels in Brazil and other countries, production and export by Brazilian farmers of soybean and sugar cane as well as their profits increasingly grows, which is currently one of the vectors that drive the agricultural frontier in Brazil mainly in theAmazon’s and Cerrado’s Biomes and brings out increasing destruction of

these biome’s forests and increased emission of CO2 and other greenhousegases in the country with a large contribution to global warming.This article aims to analyze the interactions between bio-fuel

production and destruction of biodiversity in Brazil at a multidisciplinaryapproach, due the increased destruction of forests for agricultural expansion

1 United Nations, General Assembly A/43/427, Development and Economic Co-Operation:Environment, Report of the World Commission for Development and Environment, 44 and 149-166.2 Id . at 46.3

Id . at 154.4 Id . at 194.




on Brazilian biomes and the consequences of these interactions for climatechange on our planet and global warming.

This paper also aims to exam how the Convention on Biological

Diversity (CBD), the United Nations Framework Convention on ClimateChange and Brazilian legislation deals with bio-fuels and it’s relation to biodiversity.

Part I summarizes Brazilian biodiversity and its biomes; part IIexplains how Brazilian law regulates bio-fuels; part III investigates theConvention on Biological Diversity and its relation to bio-fuels; part IV examines the United Nations Framework Convention on ClimateChange and its relation to bio-fuels; and part V explains Brazilianlegislation on biodiversity and bio-fuels.

I. THE BRAZILIAN BIODIVERSITY

Although there is still a large gap in scientific knowledge about theBrazil’s biodiversity there is a consensus among scientists around theworld that Brazil is the country with the highest biodiversity in the worldor at least with one of the greatest biodiversity in the world. Due to theimportance of biodiversity to ecosystem balance and maintenance of services that ecosystems provide to humanity as well as the

interconnection and interdependence of terrestrial and aquatic ecosystemsaround the world there is great interest by all countries by Brazil's biodiversity and its protection.

The term biodiversity or biological diversity is recent. Used on the National Forum on Biodiversity held in September 1986 in the U.S., it became known from the book edited by the ecologist Edward O. Wilson of Harvard University, United States, based on the works of this event and published in 1988 with the title Biodiversity.

Biodiversity is also known as biological diversity and is defined by the

Convention on Biological Diversity in its article 2 as follows: “Biologicaldiversity means the variability among living organisms from all sourcesincluding, inter alia, terrestrial, marine and other aquatic ecosystems and theecological complexes of which they are part; this includes diversity withinspecies, between species and of ecosystems”.

As biodiversity refers to diversity of life MAGALHÃES believes thatthe concept of Convention on Biological Diversity is mistaken for referringto the diversity of ecosystems and understand that ecosystems consists on aliving part (biotic) formed by organisms and a non-living part (abiotic)

formed by the soil, water and air. Therefore, defines biodiversity as the




“variability among living organisms from all sources including, amongothers, the bodies that make up the living part of terrestrial, marine andother aquatic ecosystems and ecological complexes which they are part;

comprising the diversity within species and between species”5

.The biggest threat to global biodiversity and therefore Brazilian biodiversity is the degradation and loss of habitats due to destruction of forests and other native vegetation forms to land conversion for agriculturaluse 6 . The forests consist on a wide variety of plants, animals,microorganisms, vegetation, soil and habitat.

Brazil comprises six terrestrial biomes: Amazon; Cerrado; Pantanal;Caatinga; Atlantic Forest; and Pampas. The Amazon and Atlantic Forest biomes, which cover 49.3 per cent and 13.4 per cent of the country

respectively, is mostly composed of tropical rainforests. The Amazon isresponsible for producing around 20 per cent of the world’s oxygen andholds nearly 15 per cent of all freshwater available on Earth. Cerrado andPampas, which cover 23.9 per cent and 2.1 per cent of the countryrespectively, are types of savannas. The Caatinga biome, which covers 9.9 per cent of the territory, is also a kind of savanna, but much drier compared to Cerrado and Pampas biomes. Pantanal biome, which covers1.76 per cent of the country, is a steppe-like savanna that is underwater for most of the year. It is considered the world’s largest wetland area. Brazil is

one of the countries with the greatest biological diversity in the world,arguably the most.7 Unfortunately it is estimated that by 2010 more than 12% of native

vegetation in Amazon Biome has already been destroyed, just like 45% of Caatinga;8 54% of Pampa, 17% of Pantanal, 46% of Cerrado, and 97% of Atlantic Forest.9

Until 1985 the livestock was the major reason for deforestation inCerrado biome but from that moment it began to be soybean planting.10

5

VLADIMIR G. MAGALHÃES 2011, PROPRIEDADE I NTELECTUAL, BIOTECNOLOGIC E BIODIVERSIDADE 30,31 (São Paulo: Fiuza & IBAP ).6 SECRETARIAT OF THE CONVENTION ON BIOLOGICAL DIVERSITY, GLOBAL BIODIVERSITY OUTLOOK 55( Montréal 2010).7 Vladimir G. Magalhães, Carolina Dutra & Mauricio D. dos Santos, Brazilian Environmental Law:‘Green Development’?, IUCN ACADEMY OF E NVIRONMENTAL LAW E-JOUNAL , 1 2011, retrieved fromhttp://www.iucnael.org/en/e-journal/current-issue-.html8 Brazil Ministry of Environment, MONITORAMENTO DOS BIOMAS BRASILEIROS, Bioma Caatinga,retrieved from http://www.mma.gov.br/estruturas/182/_arquivos/caatingamar2010_182.pdf.9 Brazil, Ministry of Environment (2011), Retrieved from http://www.mma.gov.br/sitio/index.php?ido=conteudo.monta&idEstrutura=182&idConteudo=10775.10 Machado, R. B., M. B. Ramos Neto, P. G. P. Pereira, E. F. Caldas, D. A. Gonçalves, N. S. Santos,

K & Tabor e M. Steininger, Estimativas de Perda da Área do Cerrado Brasileiro, Technical Report,Brasília: Conservation Internacional, 2004 at 7, 8.




Similarly, the main cause for deforestation in Atlantic Forest Biome was the planting of sugarcane in the sixteenth, seventeenth and early nineteenthcentury for sugar production and exports mainly to European countries, the

planting of coffee in nineteenth century, after the decline of sugar exportsand the increase demand for coffee by other countries which continued intothe twentieth century and in the end of this century the cultivation of sugarcane to produce ethanol as a bio-fuel and sugar became a significantvector of deforestation in the Atlantic Forest Biome.11

Despite the Amazon Biome still the best preserved biome,deforestation to permit soybean and sugarcane field due to the increasingglobal demand for bio-fuels has raised specialists concern12.

In this process of destruction of Brazil’s terrestrial biomes for

agricultural expansion the degree of destruction of biodiversity andextinction of species is in fact very difficult to be evaluated more precisely by the fact that biodiversity is scientifically poorly known and researched.However, although little is known about the biodiversity losses, it certainlyis significant and irreparable when the extinction of species of plants,animals or microorganisms occurs.

II. BIO-FUELS

In Brazil, the Law 9.478 of 1997, which provides for the Brazilianenergy policy, defines in its article 6 paragraph XXIV bio-fuel as the “fuelderived from renewable biomass for use in internal combustion engines or,in accordance with regulations for other types of power generation, whichmay partially or totally replace fossil fuels”. Furthermore, this law defines biodiesel as a form of bio-fuel.

Brazil was a pioneer in bio-fuel research because it has historically been an oil importing country and in 1973 with the Yom Kippur War in theMiddle East due to the possibility of difficulties in importing oil from thisregion initiated alternative researches to replace oil as fuel.

First, Brazil created the Pro-Alcohol (National Alcohol Program) in1975 through Decree-Law 76.593 to replace part of the gasoline used as fuelfor cars with ethanol made from sugarcane gradually increasing the amountof ethanol blended with gasoline. In 2005 it was launched the National

11 DÉLCIO R ODRIGUES & LÚCIA ORTIZ, EM DIREÇÃO À SUSTENTABILIDADE DA PRODUÇÃO DE ETANOL

DA CANA-DE-AÇÚCAR NO BRASIL 5-18 (São Paulo: Vitae Civilis 2004).12 I. C. G. Vieira, P. M. Toledo, J. M. C. Silva, H. Higuchi, Deforestation and threats to the

biodiversity of Amazonia, 68 BRAZ. J. BIOL. Retrieved Nov. 2008 fromhttp://www.scielo.br/scielo.php?pid=S1519-69842008000500004&script=sci_arttext




Program of Biodiesel and the Law 11.097 of 2005 which regulated theintroduction of biodiesel in Brazilian energy matrix. According to the National Agency of Petroleum, Natural Gas and Bio-fuels in December

2010, approximately 75% of biodiesel produced in Brazil were fromsoybean, 20.5% from ox fat and 2.4% from cotton oil.13

In 2005, Brazil produced 736 m3 of biodiesel and in 2010 this production increased to 2.397,272 m3. As the main raw material is soybeanthis increase stimulated the increase in production of soybean and thusexpanding the agricultural frontier for this purpose.

III. THE CONVENTION ON BIOLOGICAL DIVERSITY (CBD) AND BIO-FUELS

In 2007, the 12th meeting of the Subsidiary Body on Scientific,Technical and Technological Advice (SBSTTA) of CBD the relationship between biodiversity and production of liquid bio-fuels was considered anemerging new issue for the conservation and sustainable use of biodiversity because large-scale bio-fuel production could have adverse impacts on biodiversity, including, among others, habitat fragmentation anddegradation, increased greenhouse-gas emissions from degraded carbonsinks and deforestation, water pollution and eutrophication, andoverexploitation caused by land conflicts and increase in food prices.14

In 2008, during COP 9 in Bonn Decision IX/2 was adopted. It urgedParties to promote the sustainable production and use of bio-fuels with a viewto promote benefits and minimize risks to the conservation and sustainableuse of biodiversity; promote the positive and minimize the negative impactson biodiversity that would affect socio-economic conditions and food andenergy security resulting from the production and use of bio-fuels; anddevelop and apply sound policy frameworks for the sustainable productionand use of bio-fuels taking into account their full life cycle.15

The Decision IX/2 also called Parties and the research community,

among others, to investigate and monitor the positive and negative impactsof the production and use of bio-fuels on biodiversity and related socio- 13 Eduardo Magossi, Biodiesel Fortalece Pequeno Produtor do Nordeste, retrieved fromhttp://www.biodieselbr.com/noticias/em-foco/biodiesel-fortalece-pequeno-produtor-nordeste-210311.htm.14Convention on Biological Diversity (2007), UNEP/CBD/SBSTTA/12/9, New and Emerging IssuesRelating to the Conservation and Sustainable Use of Biodiversity, Biodiversity And Liquid Bio-fuel Production 2, retrieved from http://www.cbd.int/doc/meetings/sbstta/sbstta-12/official/sbstta-12-09-en.pdf.15Convention on Biological Diversity (2008), UNEP/CBD/COP/DEC/IX/2, Agricultural Biodiversity:

Bio-fuels And Biodiversity 2, retrieved from http://www.cbd.int/doc/decisions/cop-09/cop-09-dec-02-en.pdf.




economic aspects, including those related to indigenous and localcommunities.

During COP 10 held in 2010 in Nagoya (Japan) the Decision X/37 was

adopted on “Bio-fuels and Biodiversity” which urged Parties and other Governments to apply the precautionary approach in accordance with thePreamble to the Convention, and the Cartagena Protocol, to the introductionand use of living modified organisms for the production of bio-fuels as wellas to the field release of synthetic life, cell, or genome into the environment,acknowledging the entitlement of Parties, in accordance with domesticlegislation, to suspend the release of synthetic life, cell, or genome into theenvironment.16

This decision also invited Parties, other Governments and relevantorganizations to assess and identify areas and, when appropriate, ecosystemsthat could be used in, or exempted from, the production of bio-fuels, tosubmit to the Executive Secretary experiences and results from assessmentsof the impacts of bio-fuel production and use on biodiversity and toelaborate supportive measures to promote the positive and minimize or avoid the negative impacts of the production and use of bio-fuels on biodiversity.

IV. U NITED NATIONS FRAMEWORK CONVENTIONON CLIMATE CHANGE AND BIO-FUELS

The United Nations Framework Convention on Climate Change is aninternational treaty that brings in its second article that the key objective toachieve stabilization of greenhouse concentrations gases in the atmosphereat levels that prevent a harmful human interference in the climate systemand in a timeframe that allows ecosystems to adapt naturally to climatechange, to ensure food production and sustainable economic development.

The UNFCCC came into force on March 21, 1994, ninety days after the deposit of the fiftieth instrument of ratification by countries. In Brazil,the Convention was signed in 1992 during the United Nations Conferenceon Environment and Development held in Rio de Janeiro, and ratified by National Congress in February 1994, entering into force on May 29, 1994.

The Conference of the Parties (COP) is an instrument of applicabilityof the Convention, created to return decisions at annual meetings to ensurefulfilment with the Convention’s objectives. The report of the 16th Session

16

Convention on Biological Diversity (2010), UNEP/CBD/COP/DEC/X/37, Bio-fuels and Biodiversity, 2-4, retrieved from http://www.cbd.int/doc/decisions/cop-10/cop-10-dec-37-en.pdf.




of the Conference of Parties 17 held in November and December 2010 brought the need for greater emphasis on managing the production of biomass in the GEF-5 Land Degradation Strategy18 , recognizing its

implications on soil conditions and the ecosystem which contribute to theincreased emission of greenhouse gases.Among the technical documents of the UNFCCC, it is worth

mentioning the 'Challenges and opportunities for mitigation in theagricultural sector'19 of November 21, 2008 which attested that agriculturalactivities are responsible for the release of significant amounts of carbondioxide, methane and nitrous oxide into the atmosphere, which have a long-term influence on global climate. According to the document, in 2005 theregional emissions were higher in South and Southeast Asia and Latin

American countries and the carbon dioxide had the largest increase inemissions that year due to biomass burning.Due to the close relationship between agriculture and global warming,

as a major source of release of carbon dioxide in the atmosphere is cuttingor burning of vegetation for land clearing and planting and that thisagricultural practice has increased due to the demand for bio-fuels, thedocument provides a recommendation for the future that bio-fuels madefrom agricultural raw materials, require the development of innovativetechnologies and appropriate government investments to reach their

potential to contribute to the mitigation of greenhouse gases.

V. BRAZILIAN LEGISLATION

Biodiversity is protected in Brazil mainly by Law 4.771 of 1965 whichestablished the Forest Code due to the fact that this law prohibits thedeforestation of part of the rural property to agricultural practice in allBrazil’s biomes.

This law prohibits deforestation in 80% of rural’s property area in the

Amazon biome, 35% of the rural’s property area in Cerrado, and 20% of therural’s property area located in other biomes.

17 Framework Convention on Climate Change (2010), FCCC/CP/2010/5, Report of the Global Environment Facility to the Conference of the Parties, retrieved fromhttp://unfccc.int/resource/docs/2010/cop16/eng/05.pdf.18 The Global Environment Facility (GEF) is an independent financial organization that unites 182member governments to discuss global environmental issues. The GEF provides grants to developingcountries and countries with economies in transition for projects related to biodiversity that benefitglobal environment, promoting sustainable livelihoods.19 Framework Convention on Climate Change (2008), FCCC/TP/2008/8, Challenges and

Opportunities for Mitigation in the Agricultural Sector , retrieved fromhttp://unfccc.int/resource/docs/2008/tp/08.pdf.




Moreover, this law prohibits the deforestation of tracks that can rangefrom 30m to 500m depending on the length of the river.

The Forest Code also prohibits deforestation around ponds, lakes and

natural or artificial water reservoirs (dams), in the springs, even flashing aminimum radius of 50 (fifty) feet wide, at the top of hills, at mountains, atslopes or parts thereof, with slopes above 45 degrees, and altitude above1.800 (one thousand eight hundred) meters, among other areas.

By protecting forests and other forms of native vegetation on rural properties in all Brazil’s biomes The Forest Code is not only protectingvegetal biodiversity but also animal biodiversity and microorganisms thatlives in these forests. Thus, the rural property that grows soybeans for biodiesel or sugarcane for ethanol production cannot deforest these areas protected by this law.

Unfortunately, it is now in Brazil’s National Congress a bill of Mr.Aldo Rebelo to change the text of the Forest Code to significantly reducethe protection currently afforded by this law to all biomes by limitingdeforestation in rural properties and therefore resulting from agriculturalactivity and agricultural expansion. This change will certainly result in greatincrease of deforestation including agricultural expansion to increasedomestic production of soybean and sugarcane including for the production

of biodiesel and ethanol, in other words, bio-fuels for domestic consumptionand export.Other laws deal with Brazilian biodiversity as a whole. Decree 4339 of

2002 created the National Biodiversity Policy that has as general objectivethe promotion of biodiversity conservation and sustainable use of itscomponents, with the fair and equitable sharing of benefits arising from theuse of genetic resources from components of genetic resources andtraditional knowledge associated with these resources.

Furthermore, this decree establishes as a component of National

Biodiversity Policy, which should be applied to all biomes, the knowledgeof Brazilian biodiversity through scientific research and systematization of existing knowledge (Component 1), the conservation of biodiversity(Component 2); sustainable use of biodiversity (Component 3); monitoring,assessment, prevention and mitigation of impacts on biodiversity(Component 4), promotion of controlled access to geneticresources and to associated traditional knowledge and benefit sharing(Component 5); the promotion of education to disseminate existinginformation on biodiversity (Component 6), and legal and institutional

strengthening for sustainable management of biodiversity (Component 7).




On September 15, 2010 was issued another decree which establishedthe Action Plan for Prevention and Control of Fires and Deforestation in theCerrado in order to promote measures and actions aimed at reducing the rate

of deforestation, forest fires and wildfires in this biome.In relation to bio-fuels Brazilian legislation covers the Law 9.478 of 1997 which provides, among other things, the National Energy Policy. Thislaw was published in 1997 and at that time did not mention bio-fuels but itswording was changed by Law 11.097 of 2005 to include bio-fuels in their devices. So with this new writing the Law 9.478, which included among itsobjectives the protection of the environment, now, includes also the increasein economic, social and environmental bases, of bio-fuel share in nationalenergy policies.

The Law 9.478 of 1997 created the National Energy Policy Councillinked to the Presidency and chaired by the Minister of Mines and Energy,is responsible for proposing to the President national policies and specificmeasures to establish guidelines for, among others, the bio-fuels program.

Besides of Law 9.478-1997 established the National Agency of Petroleum, Natural Gas and Bio-fuels as a regulator of the oil industry,natural gas, bio-fuels and their derivatives bound to the Ministry of Minesand Energy. The Agency aims to promote regulatory, contracting andmonitoring of economic activities in the petroleum industry, natural gas and

bio-fuels and their competence to implement, within its sphere of competence, the national policy of oil, natural gas and bio-fuels contained innational energy policy, as well as supervise the activities members of the oilindustry, natural gas and bio-fuels, and may impose administrative penaltiesand fines provided by law, regulation or contract.

The Agency also has jurisdiction to enforce best practices to theconservation and rational use of oil, natural gas, bio-fuels and their derivatives and preservation of the environment, organize and maintainarchives of information and technical data related to the regulated activities

of the oil industry, natural gas and bio-fuels, and specify the quality of petroleum, natural gas, their derivatives and bio-fuels.The Law 9.478 of 1997 provides that the exploration, development and

production activities of oil and natural gas will be carried throughconcession contracts with the companies after the bidding process and thatthese contracts lay out in which ways the government will participate inincome generated by these activities performed by firms.

Among the forms of government involvement is the gain of royalties inwhich 25% of each royalty share received by the government that exceed

5% of production must be given to the Ministry of Science and Technology




to fund programs supporting scientific research and technologydevelopment applied to petroleum, natural gas and bio-fuels and programsfor prevention and recovery of damages caused to the environment by these

industries.

CONCLUSION

In Brazil, soybean and sugar cane used for food but also for the production of bio-fuels with the increasing conversion of native forest areasmainly in the Cerrado biomes, Amazon and Atlantic forest are a significantcause of Brazilian animal, vegetal and microorganism biodiversity loss, because of forests and other native vegetation constitute the vegetal

biodiversity and serve as habitat for animal biodiversity and microorganisms.The destruction of Brazilian tropical forests shows despite the existinglegal protection reveal a certain lack of effectiveness of environmentallegislation for protection of forests and other native vegetation forms and biodiversity in general.

The production of bio-fuels in Brazil is legally regulated in a way to beincreased its participation in the Brazilian energy matrix and, consequently,its production as well as the soybean and sugarcane that are the main sourcefor production. On the other hand, this same legislation provides that the

biodiesel’s production should not cause damages to the environment andtherefore to the biodiversity that exists in it. However, the destruction of legally protected forest areas for agriculture to produce soybeans andsugarcane, partly used for bio-fuel production, reveals a lack of effectiveness of these environmental protection legal determinations.

Internationally the CBD reveals a great concern with the negativeimpacts on biodiversity caused by bio-fuel production as well as the use of genetically modified organisms for bio-fuel production. In turn, theUNFCCC recognized the need for greater control in GEF resources

concession for bio-fuel production by recognizing that it may impactecosystems, therefore, biodiversity, and contribute to increased emissions of greenhouse gases and therefore, to increase global warming, rather thancontributing to its mitigation.

Finally, it must be concluded that for bio-fuel’s production in Brazildoes not cause serious negative impacts on its biodiversity it is necessarythat the Brazilian government make a better monitor if the Brazilianenvironmental legislation for protection of forests and biodiversity ingeneral is being fulfilled and also do not approve bills that would reduce the

current level of legal protection of these forests and their biodiversity.




Similarly, Brazilian government should supervise more intensively the production of bio-fuels and mainly soybean and sugarcane crops in a waythat the forests and their biodiversity are protected as an essential part of the

environment thus increasing the effectiveness of Brazilian Law thatdisciplines the production of bio-fuel.In this sense it would also be desirable to introduce in current

legislation that regulates the production and sale of bio-fuels the mandatoryrequirement of the evidence that in the entire chain of its production,including the cultivation of soybeans, sugarcane and other raw materials,occurred with strict enforcement of environmental legislation for protectionof forests and biodiversity in general to allow its sales for domestic marketand export.

So, the production and use of bio-fuels in Brazil and countries whichBrazil exports wouldn’t cause negative impacts on biodiversity or contributeto the increase emission of greenhouse gases and Brazil and all thesecountries would be attending effectively CBD’s and UNFCCC’s goalscontributing to greater effectiveness of these two important internationalconventions to ensure truly sustainable development and the very dignifiedsurvival of the human species on planet Earth.



657

DECENT WORK FROM THE PERSPECTIVE OF THE

RIGHT TO DEVELOPMENT AND HUMAN

DEVELOPMENT

Saeed Reza Abadi

According to Director-General of International Labor Organization

(ILO), the purport of decent work reflects in human personal and social life.

The decent work, on the level of personal life, in other words, employment

and human subsistence, addresses human dignity principle and attempts to

protect it. On the social life level, the decent work pursues growth and

development, as the ultimate goal of nations. The right to development, as

one of the components of third generation of human rights, embraces the

rights which provide entitlement of all human people to an equitable proper share of global property and productive services. Human development can

be viewed as all the processes which lead to development and formation of

human capacities, also makes individual active participation in the

economic growth, feasible. The relation of decent work to the right to

development, especially the matter of human development, is the question

propounded in this research, seeking respond. It is believed that the goals

of decent work can be assessed along human development programs.

I NTRODUCTION............................................................................................ 657I. THE CONCEPT OF DECENT WORK ............................................................ 658

A. Decent Work as the Guarantee of Human Dignity for Individuals ...................................................................................... 659

B. Decent Work as a Development Strategy ....................................... 660II. THIRD GENERATION OF HUMAN R IGHTS AND THE R IGHT TO

DEVELOPMENT ...................................................................................... 660III. THE CONCEPT OF HUMAN DEVELOPMENT............................................. 663IV. THE R ELATION BETWEEN HUMAN DEVELOPMENT AND DECENT

WORK ................................................................................................... 665CONCLUSION ............................................................................................... 668

I NTRODUCTION

While the human history is the messenger of the vast magnificent

heritage of civilization, it also carries calamities as slavery, exploitation

and class differences, made the work synonymous with hardship and

Ph.D., Assistant Professor, Public Law, Faculty of Law, Shahid Beheshti University, Tehran &

Researcher in fields of Labour Law, Social Security law, Financial Law and Economic Public Law.




men” everywhere.4

Four components of the notion are elaborated in the

Report of the Director-General: promotion of fundamental rights at work,

employment, social protection and social dialogue. It was also indicated that

“The primary goal of the ILO today is to promote opportunities for womenand men to obtain decent and productive work, in conditions of freedom,

equality, security and human dignity”. Therefore, through the description

given on decent work, it can be concisely defined as a productive work

which in addition to inclusion of fundamental rights components,5

provides

propitious conditions of social protection and social dialogue in which

respect to fundamental human rights as freedom, equality, security and

human dignity would be realized.

In addition to the abovementioned report of the Director-General of

ILO, to elucidate the concept of decent work, attention should be paid toother descriptions and features of the concept in different international and

regional instruments and forums. The following sections will exemplify

other definitions.

A. Decent Work as the Guarantee of Human Dignity for Individuals

In the regional meeting (August, 2001) on how creating policies for

“decent work” Director-General of ILO elaborated the notion of the decent

work, as follows:“[Decent work] is about your job and future prospects; about your

working conditions; about balancing work and family life, putting your kids

through school or getting them out of child labor. It is about gender equality,

equal recognition, and enabling women to make choices and take control of

their lives. It is about your personal abilities to compete in the market place,

keep up with new technological skills and remain healthy. It is about

developing your entrepreneurial skills, about receiving a fair share of the

wealth that you have helped to create and not being discriminated against; it

is about having a voice in your workplace and your community. In the mostextreme situations it is about moving from subsistence to existence. For

many, it is the primary route out of poverty. For many more, it is about

realizing personal aspirations in their daily existence and about solidarity

with others. And everywhere, and for everybody, decent work is about

4 Decent Work5 ( International Labor Office, First Pub, 1999).5 In conformity with the ILO Declaration on Fundamental Principles and Rights at Work, “the

principles concerning the fundamental rights which are the subject of those Conventions, namely: (a)freedom of association and the effective recognition of the right to collective bargaining; (b) the

elimination of all forms of forced or compulsory labor; (c) the effective abolition of child labor; and(d) the elimination of discrimination in respect of employment and occupation.




securing human dignity.”

B. Decent Work as a Development Strategy

While it seems appropriate to consider all the above mentioned

explanations are addressing to the personal life of individuals, Director-

General of ILO regarded decent work as a development strategy. The

Director-General construed the decent work as follow:

Decent work is a development strategy. It is a goal not a standard. It does

not offer a “one size fits all” solution. It is a personal goal for individuals and

families and a development goal for countries.

Moreover, in the 2001 meeting, the Director-General referred to the

conditions detrimental to decent work:

— There is involuntary unemployment and poverty;

— There are abuses of rights at work and forced and child labor exists, and

discrimination is practiced;

— Basic income security is missing and workplace anxiety, depression and

exhaustion are commonplace;

— Workers and employers are either not organized to make their voice heard, or

face obstacles to effective dialogue;

— Life at work cannot be properly balanced with the claims of the family.6

II. THIRD GENERATION OF HUMAN R IGHTS

AND THE R IGHT TO DEVELOPMENT

In response to the present circumstances and new demands, third

generation of human rights, or the so-called rights of solidarity, was

introduced accompanied by universally extension of international human

rights law. In other words, third generation, as the combination of modern

law with legal issues concerning first and second generations was

propounded in the twentieth century. It is believed that Article 28 of

Universal Declaration of Human Rights7 has provided the main ground for the deep concentration on third generation rights. The rights-based approach

to development, set forth by solidarity rights, has furnished an appropriate

ethical basis for action against poverty which leads to protection of the poor

in the course of efforts to reach social justice, because poverty is the evident

6 Somavia Juan, Director General,

s inaugural address to the 13th Asian Regional meeting, August

2001.7

Article 28 of Universal Declaration of Human Rights reads: “Everyone is entitled to a social andinternational order in which the rights and freedoms set forth in this Declaration can be fully realized”.




evidence of disregard for a great part of human rights. The first generation

of civil and political rights are based on the principle of liberty, while the

second generation of economic, social and cultural rights are based on the

principle of equality and the third generation of rights of solidarity are basedon the principle of fraternity. All the three notions are enshrined in Article 1

of Universal Declaration of Human Rights, as follows: “All human beings

are born free (liberty) and equal in dignity and rights (equality). They are

endowed with reason and conscience and should act towards one another in

a spirit of brotherhood (fraternity)”.

According to what is regarded to be solidarity rights in Draft of the

third International Human Rights Covenant (1982), United Nations 1986

Declaration on the Right to Development and the final declaration of World

Conference on Human Rights, 14-25 June 1993, Vienna, third generation of human rights include the right to peace, the right to healthy and balanced

environment, the right to common heritage of mankind, Right to

communicate and the right to humanitarian assistance as the universal

common values.

The justiciability of the first generation of civil and political rights is

their distinctive characteristic, which presupposes a duty of non-interference

on the part of government towards individuals (such as non-infringement of

the right to assemble). Claim ability can be regarded as the characteristic of

the second generation of economic, social and cultural rights which requireaffirmative government action for their realization. In contrast with first and

second generation rights, the distinctive characteristic of the third generation

of human rights is their justicibility and claim ability. Moreover, solidarity

rights only can be realized through participation of all individuals,

governments, public and private organizations and international

community.8

As mentioned here, the right to development is a component of

the third generation of human rights. According to the human rights draft

prepared by the International Foundation for Human Rights, the right to

development provides for the enjoyment of all human people, women andmen, in a fair and proportionate share of property and productive services of

global community.9

The governments share in realization of the right to

development and individual aspect of it has been noticed in this definition.

In addition, the national and international correlation is regarded as the basis

of the development principle and the justice as the final goal of the

8 Amir-Arjomand, Ardeshir, Protection of Environment and International Solidarity, JOURNAL OF

LEGAL STUDIES, Law Faculty of Shahid Beheshti University, No. 15, at 328.9

MOLAEI YOUSEF, THE RIGHT TO DEVELOPMENT AND UNIVERSITY OF HUMAN RIGHTS 93(Majd Law Publishing 2002).




development. Anyway, it is the human as the pillar and ultimate goal of the

development. The development is generally considered as a collection of

social, economic, political, cultural and intellectual transitions which lead to

comprehensive development of abilities and capacities of the society.Therefore, Development is a complicated process which is shaping to

improve human life, by human, for human.

In 4 December 1986, in the “Declaration on the Right to Development”,

adopted by the United Nations General Assembly resolution 41/128, the

new approach to right to development was proclaimed. The Declaration on

the Right to Development includes a preamble and 10 Articles. Article 1 of

the Declaration states: “The right to development is an inalienable human

right by virtue of which every human person and all peoples are entitled to

participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms

can be fully realized”. Article 2 introduces the human person as the central

subject of development and stresses on the right and the duty of states to

formulate appropriate national development policies.

In the World Conference on Human Rights (1993), the right to

development was reaffirmed as a universal and inalienable right and an

integral part of fundamental human rights.

According to the UN Secretary General, real and sustainable

development only can be achieved through full respect for political,economic and social rights of all people. It helps to establish the social

balance which is required to transform society into vital peaceful situation.

The right to development is a criterion to measure the respect for other

human rights. Our goal should be establishment of situations in which

everyone can maximize their potential abilities and participate in the

evolution course of society.10

Therefore, the right to development can be considered as the

recognition of the right to equitable enjoyment of all people in material and

intellectual resources and assets which are in the possession of the globalcommunity, including food, education, health, housing, art, freedom,

security, other necessities and preparations which make the human survival

and their material and spiritual prosperity feasible. Consequently, the right

to development is an inalienable part of the right to life and they are

considered to be interdependent.

Contrary to the past in which physical capital was considered the

stimulus of economic development, human capital, according to the new

10

Human Rights in Contemporary World , in Center for Graduate International Studies of Law andPolitical Science Faculty of Tehran University 23 (2000).




framework of human resource management through appropriate monitoring

and evaluation of training results.

One of the key concepts propounded in relation to development

strategy is the formation of human capital. Human capital mainly includeslabor force of a society. There is, of course, such a force in every society,

but, the important issue is how to use these forces which in practice lead to

evident distinction between developed and developing countries, because

the mere existence of labor force can not be considered as human capital.

In fact, professional and healthy work forces form the human capital of

every society.15

The method of using labor force is far more important than the

existence of such a force, because, undoubtedly, there are people in every

society capable of working in industry, agriculture, production of goods andservices. In contemporary world, the capability of work force is not the main

issue, but the methods of using potentials and activating work force

capabilities are of importance. In fact, labor force becomes capital when

there is investment made in form of education and training. In order to

prosper human resource, like other social sectors, there should be

enforceable rules and principals. These standards (rules and principles)

adjust human force management to public order and expediency. In this

context, the importance of labor law standards becomes more obvious;

because investment in human resource will leads to prosperous results if the

laws are complied.

IV. THE R ELATION BETWEEN HUMAN DEVELOPMENT AND DECENT WORK

The decent work paradigm, as one of the modern labor standards, that

considered of importance in work relations, dates back to 1999 and the

report of ILO Director-General to 87th

session of International Labor

Conference.

As mentioned above, decent work concept is defined as equal

opportunities for proper and productive work along with freedom, security,

equality and human dignity. Four strategic approaches to realization of

decent work goals involve promotion of fundamental rights at work,

employment, social protection and social dialogue.

From the perspective of citizenship rights, decent work can be regarded

as a proper and appropriate response to natural and inherent demands of

15

See Davari Ahmad, Development of Human Resources and Administrative Order , Presented in“DEVELOPMENT OF ADMINISTRATIVE SYSTEM” CONFERENCE, Tehran, 2000.




individuals who try to meet their social and economic needs through

participation in social and political affairs of the government system.

Decent work means productive work which guarantees rights at work.

Also, it is defined as appropriate employment which involves equality of work opportunities for all women and men.

Decent work marks the high road to economic and social development, a

road in which employment, income and social protection can be achieved without

compromising workers' rights and social standards. Tripartism and social

dialogue are both objectives in their own right, guaranteeing participation and

democratic process, and a means of achieving all the other strategic objectives of

the ILO. The evolving global economy offers opportunities from which all can

gain, but these have to be grounded in participatory social institutions if they are

to confer legitimacy and sustainability on economic and social policies.16

The ILO has made a major contribution to the promotion of human

rights at work which was reiterated in the Report of the Director-General

(1999). In this regard, ILO has three priorities, as follows:

(1) To promote the Declaration on Fundamental Principles and Rights

at Work and its Follow-up,

(2) To step up the struggle to eliminate child labor,

(3) To renew its work on ILO standards.

In all cases, the aim is to promote development with human dignity and

social justice. In response to the first priority, ILO adopted the Declarationon Fundamental Principles and Rights at Work and its Follow-up in 1998.

The Declaration is a pledge to respect, promote and realize in good faith the

principles and rights relating to freedom of association and the recognition

of the right to collective bargaining; the elimination of all forms of forced or

compulsory labor; the abolition of child labor; and the elimination of

discrimination in respect of employment and occupation. Unlike an

international labor Convention, which binds only Members that ratify it, the

Declaration applies automatically to all countries that have accepted the ILO

Constitution, whether or not they have ratified the fundamental Conventionsof the ILO.

The Declaration mandates the ILO to encourage other international

organizations with which it has established relations to help create a climate

for economic and social development that respects fundamental principles

and rights at work.

With respect to the second priority of ILO, the Director-General

reminded that the Child labor is a pressing social, economic and human

16 Report of the Director General to International Labor Conference, 87th session, 1999.




rights issue. As many as 250 million children worldwide are thought to be

working, deprived of adequate education, good health and basic freedoms.

Then, he referred to the principles of elimination of child labor and

proposed InFocus Programs for promoting development by providingadequate educational alternatives for children and access to decent work,

sufficient income and security for their parents.

Other section of the Report on “Development and the Elimination of

Child Labor” states: “Ending child labor is a goal in itself; but it is also a

powerful way of promoting economic and human development. Eliminating

child labor will permit more investment in human capability, promote the

ideals of decent and dignified work, and help alleviate poverty. Conversely,

development increases household incomes, promotes better access to

education and creates decent work for adult family members, thus in turnhelping to eliminate child labor”.

17

With regard to “renewing work on labor standards”, as the third

priority, it was stated in the Report that: “Of the 23 Conventions and two

Protocols adopted in the 15 years from 1983 to 1998, only three have

received at least 20 ratifications. Even when ratified, many Conventions

are only weakly implemented. If the ILO is to ensure its continued

relevance in this field and reassert the usefulness of international

standards, it will need to reinvigorate its efforts and experiment with newapproaches”. Then, in the Report “a number of actions” that “are

necessary to raise the profile and increase the relevance of the ILO’s

work on standards” are set down, as follows: preparing the ground for

new standards more thoroughly; exploring new methods of standard

setting; engaging in deeper analysis of existing standards, their synergy,

lacunae, and impact on various groups; accelerating the revision of

outdated instruments to build on progress already made and promoting

priority standards as problem-solving tools; enhancing the impact of the

supervision of standards, etc.18 It is noteworthy that, though, the right to work and its related standards

has been considered from the perspective of the second generation of human

rights (social, economic and cultural rights) until now, but at present, the

issue should be examined from the perspective of the third generation of

human rights, especially the right to development, so it is more appropriate

to analyze and evaluate the ILO’s effort to establish a new approach in field

17

Ibid .18 Ibid.




of employment, namely the decent work.

CONCLUSION

The first Article of Universal Declaration of Human Rights affirms the

principles of liberty, equality and fraternity, as the fundamental human

rights in personal and social situations. These principles are introduced

within the framework of the tripartite generations of human rights. The right

to development is regarded as an instance of the third generation of human

rights. Although, until now, the right to work and all the other fundamental

rights and freedoms have been considered as subcategories of the second

generation of social, economic and cultural rights, in this paper, we tried to

describe and corroborate the relation between the concept of decent work with the third generation of human rights, especially the right to development.

The recognition of the right to development, as the equitable enjoyment

of all human people in material and intellectual resources and assets which

are in the possession of the global community, including education, health,

especially work, and the acceptance of human development, as the process

of development and formation of human capacities which makes individual

active participation in the economic growth, feasible, along with explaining

a fresh concept for the decent work and its related indices and components,

are all considered, in this paper, to be a new approach to the issue of work inan appropriate situation.



669

ESSAYS

MEANS OF PROOF IN COMMON AND CIVIL LAWSYSTEMS: A COMPARATIVE APPROACH

Leonardo J Raznovich

This article presents a comparative theoretical and practical analysis

of common and civil law systems concerning the use of evidence in civil

litigation as a means to determine contested facts and achieve, in

Bentham’s words, ‘rectitude of decision’. The comparison examines the

way in which common and civil law systems deal with similar legal

problems at the point of determining contested facts and shows the fundamental similarities that, in doing so, pervade both systems. This

finding ought to lead to undermine the argument that the procedural

differences between the two systems’ approaches to the gathering of

evidence are an impediment to harmonization (or at least approximation) of

both systems.

I NTRODUCTION

The common law tradition illustrated by the legal process models of

the United States and England presents a relatively passive judge andassumes that justice is best served by giving the parties primaryresponsibility for the gathering of evidence. 1 In the civil law tradition,exemplified here by the French system,2 neither has the judge a parallel passive role, nor have the parties such a control in relation to the gatheringof evidence.3 The difference between the two models’ approaches in relation

B.A. (1989), Universidad de Buenos Aires, Colegio Nacional de Buenos Aires; LL.B. (1995), LL.M.(1997), Harvard University Law School; D. Phil. (2004), Oxford University. Dr. Raznovich iscurrently a Principal Lecturer in Law and Strategic Director for Law and Dispute Resolution at

Canterbury Christ Church University, United Kingdom.1 The model of a judge being neutral and detached remains an archetype of common law legal processin both bench and jury trial. See Richard D. Friedman, Anchors and Flotsam: Is Evidence Law

“Adrift”?, 107 YALE L.J. 1921, 1949-50 (1998).2 “Civil law” refers to the Romano-Canonical system which originated in the Roman Empire.BLACK ’S LAW DICTIONARY 223 (5th ed. 1979). Today, there are two variants: the French and theAustro-German procedural systems. This Article limits itself to the French-rooted civil law model,which has spread its influence to southern Europe and Latin America. R. C. Van Caenegem, Historyof European Civil Procedure, 16 I NTERNATIONAL E NCYCLOPEDIA OF COMPARATIVE LAW 79, 109-11(M. Cappelletti ed., 1971).3 See R OGER PERROT, I NSTITUTIONS JUDICIAIRES [I NSTITUTIONS OF THE JUDICIARY] 559 (11th ed. 2004)(“[L]a conduite de la procédure n’est plus abandonnée comme autrefois a la discrétion des parties: le




and direct and public assessment. The evidence that passes the test isconsidered trustworthy evidence, upon which the fact finder may safely basea judgment. If the evidence is, however, unavailable to pass the test, then its

trustworthiness cannot be tested. It is then that rules often, though notalways, exclude second hand evidence. The hearsay rule illustrates thisdistrust and also the exclusionary mechanism of dealing with this problem.

B. Common Solution

These illustrations highlight that untrustworthy evidence is distrustedand, where possible, excluded by both systems. If all evidence is inherentlyuntrustworthy, the question remains what makes evidence so untrustworthy

in order to exclude it rather than deal with its untrustworthiness in the usualway as a matter of weight rather than admissibility. Some light may be shedon our inquiry by the following examples. In Myers v DPP

14 the prosecutionintended to prove that certain cars were stolen (by the defendants) byshowing the discrepancy between the numbers from the wrecks (whichcould be changed) and the match of the numbers casted into the cylinder block (which could not be changed). During the manufacturing process of the car, all numbers were written on cards, which were microfilmed. The prosecution sought to introduce these cards. The trial court (as confirmed by

the House of Lord later) excluded the cards for being hearsay that (at thattime) did not fall within any recognised exception.15 Lord Reid explained:“[T]he reason why this evidence [cards] is maintained to have beeninadmissible is that its cogency depends on hearsay.”16 In other words, inthat case, it could not be proved that the cards were correct or that thenumbers that the cards contained were in fact the numbers on the car whenthey were made. In essence, the House of Lords meant that rejection of thecards on the grounds of hearsay called for the admission of the testimoniesof the operators that entered the numbers on the cards and saw the cars on

the production line.

17

But this argument overlooks that if these operatorscould have been identified in order to put them under oath and cross-examine them, the most they could have given testimony about was the process they witnessed, i.e., they could not have given testimony withregard to just one out of many hundreds of thousands of cards filled outeach year. It is evident that the cards, once authenticated, albeit as hearsay,

14 [1965] AC 1001 (HL) (UK).15 Id . at 1024 (Lord Reid).16

Id. at 1019.17 Id. at 1035-7 (Lord Pearce).




does not apply, e.g., there is no duty to pre-appoint evidence regardingcommercial contracts,22 quasi-contractual situations and civil or criminaltort cases, 23or civil contracts where their value is less than 800 Euros.24

As a matter of law of evidence, article 1341 is an affirmative rule of exclusion because it excludes, in the case of litigation, extrinsic evidence toan agreement, regardless of whether a written version of the agreementexists. This means that in cases of litigation, other evidence, apart from adocument, is inadmissible. This limit to general admissibility is consideredone of the foundations of the French system of evidence in contractlitigation. The following is an example of this exclusionary rule in operation:

[Q] u’il incombait à M. Perroy, qui soutenait avoir acquis le véhiculelitigieux en commun avec M. Bro, de rapporter la preuve, conformément aux

articles 1341 et suivants du Code civil, de la convention d'indivision qu'il aurait passée avec ce dernier; qu’ayant constaté que ce véhicule avait une valeur excédant 5 000 francs, la cour d'appel a décidé, à bon droit, qu'en l'absence decommencement de preuve par écrit la preuve par témoins ou par présomptions ne

pouvait pas être admise.25

From the point of view of evidence law, the rationale that could explainthe rejection of testimonial evidence is that the proposing party, Perroy, maydeceive the court by submitting witnesses to support a fake claim. Thisargument appears sound, but it does overlook the fact that the opposing

party, Bro, could also be raising a fake defence. If this were the case, Browould be allowed to win, merely by exercising his right to deny Perroy’sclaim. Bro’s false claim, worthy of exclusion, could prevent Perroy from proving his claim by invoking the exclusionary rule and thereby treating theclaimants unfairly. Further, this decision is, at first sight, bewildering for acommon law lawyer as it excludes the most common means of proof used incommon law systems. However, the underlying reason why the witnesses’evidence is inadmissible, regardless of the relevance of their testimony tosolving the dispute, is related to the risk that the judge might be deceived as

a consequence of such witnesses plotting against the defendant.These examples show that an exclusionary solution actually exists on

both sides of the Channel, and their rationale appears to derive from similar grounds: risks associated with the skill of the fact finder to assess certaintypes of relevant evidence. The systems therefore share a common remedy

22 CODE CIVIL[COD. CIV.]art. 1341 (Fr.) last para and CODE DE COMMERCE[COD. COM.] art. 110-3(former art. 109) (Fr.).23 CODE CIVIL[COD. CIV.]art. 1348 (Fr.).24 CODE CIVIL[COD. CIV.]art. 1341 (Fr.) and Décret Nº 2001-476 (May 30, 2001) (Fr.) art. 1 in JO

June 3, 2001, at 8886.25 Cass 1e CIV, December 3, 1996 [1996] Bull Civ I Nº 431, at 301.




to a common problem. These are: they both exclude relevant evidence thatthey arbitrarily label ‘too untrustworthy’ because of risks associated withthe skill of the fact finder to assess it rather than the level of

untrustworthiness of the evidence itself.

C. The Problem of Exclusion

In emphasizing the untrustworthy character of the evidence excludedand its potential for misleading the fact finder, the argument neglects thefact that no evidence is totally reliable, and that even confessions,considered in the past probation probatissima, were (and are) often obtainedunder torture or duress.26

This highlights another fact: Evidentiary problems that jeopardiserectitude of decision are not necessarily related to the admission of relevantevidence whose reliability could not be tested properly, but rather to theexclusion of relevant evidence. For instance, in France, the exclusion of witnesses ineffectively attempts to impose an exclusionary solution, under the assumption that this is a fair solution by which to avoid the possibility of deceiving the court, through submitting untrustworthy witnesses to supporta fake claim. This solution, apparently sound, is unsuccessful in advancing(let alone achieving) rectitude of decision. The exclusion of hearsay faces

similar problems. Based on the assumption that second hand evidence isuntrustworthy because it cannot be put to test, the exclusion of hearsay alsoappears to impose a fair solution and to promote rectitude by avoiding therisk of deceiving the court. This argument is, however, also flawed, becausesystematically excluding hearsay may lead to a failure in achieving rectitudeof decision.

The exclusionary solution therefore has, in both systems, a similarlynegative impact: Rectitude of decision suffers in both models, simply because relevant evidence is excluded. Most importantly, the exclusionary

solution appears to be responsible for placing the systems directly oppositeto each other. This contrast was illustrated by the French aversion to usingwitnesses in contract cases, conversely the most common means of evidenceused in common law systems, and also by the common law’s rejection of second hand evidence, whereas the French system appears to do wellwithout excluding this type of evidence.27

26 M FOUCAULT, DISCIPLINE AND PUNISH 37-47 (A Sheridan trans., Penguin Books 1987).27 Hearsay is often admissible under French law. Cass req January 3, 1893 [1893] 1 S 337, 338(‘[L]es dépositions reçues dans une enquête ne sont pas dénuées d’autorité parce que leurs auteurs

n’auraient connu les faits dont ils témoignent qu’indirectement et par des récits qui leur en auraientété rapportés.’). Cf. 12 C AUBRY AND C R AU, COURS DE DROIT CIVIL FRANÇAIS D’APRÈS LA MÉTHODE




argued that common law lawyers would tend to opt for written contracts andthat these would be much lengthier than the ones drafted by civil lawlawyers. 31 The comparison is particularly useful because Belgian law

follows the French code; hence they have a similar pre-appointed writtenevidence rule.32 Furthermore, both England and the United States normallyallow the use of witnesses to prove a contract, so the finding that commonlawyers not only opt for written contracts, but also write lengthier contracts,appears to undermine the French legislator’s fears.

Professor Langbein, in expanding Van Hecke’s comparative approach,argued more recently that the reasons for having lengthier written contractswere founded on the ‘perception of the efficiency and predictability of procedural system through which you should have to work in order to

vindicate your substantive rights.’33

He claimed that one of the most prominent shortcomings was the adversary distortions at the trial fuelled bythe use of witnesses,34 therefore common law lawyers would have ‘greater incentive to invest in contracting precision.’35

The manner in which the common law system deals with the use of witnesses and factual uncertainty appears to undermine the concern that isused to justify the fact that French law perpetuates the exclusionary effect of article 1341 in the Civil Code. In fact, both common and civil law systemsseem to consider witnesses an inefficient and unpredictable means of proof

and a source of expense and procrastination in case of litigation. Further, both systems seem to consider documentary evidence more trustworthy thanwitnesses, as they have almost none of the negative aspects of the latter.However, the common law has not kept the exclusion of witnesses as ameans of evidence. Moreover, the best evidence rule, which was used toserve that purpose, has become a rule of preference rather than a rule of exclusion.36

The comparative work also illustrates that having a system where parties could choose whether to have an agreement in writing, or not, has

not triggered any rush towards oral contracts. In fact, common lawyers,

31 Id . at 10.32 Code Civil [COD. CIV.] art. 1341 (Bel.).33 JH Langbein, Comparative Civil Procedure and the Style of Complex Contracts, 35 AMERICAN

JOURNAL OF COMPARATIVE LAW 381, 385 (1987).34 Id . at 387-8. Cf JH Langbein, The German Advantage in Civil Procedure, 52 U NIVERSITY OF

CHICAGO LAW R EVIEW 823 (1985) (discussing the procedural and evidential underpins of thecommon law system). Contrast RJ Allen and others The German Advantage in Civil Procedure: A Plea for More Details and Fewer Generalities in Comparative Scholarship, 82 NORTHWESTERN

U NIVERSITY LAW R EVIEW 705 (1988).35

Langbein, supra note 33, at 386.36 Civil Evidence Act, 1995 (UK.) c.38, s.8. See also case law cited supra in footnote 45.




being able to choose between both of them, prefer not only written contracts, but also lengthy and detailed contracts, in order to avoid the use of witnesses, in case litigation arises. The implication of this is that the

common law system managed to impose the use of written evidence in order to record transactions, the same result that the French legislator purported toachieve, but without excluding witnesses as the French system proudlydoes.37

There is a final criticism to Ministry Vaillant’s claim that the lack of rules imposing evidentiary choice might hamper the accurate determinationof facts in contractual disputes.38 Comparative law as the research of Heckeand Langbein showed cannot support this claim; furthermore, the claimitself also suffers a theoretical flaw. This is because of the very basic nature

of our imperfect procedural systems; namely that no system of procedureconsistently achieves rectitude of decision.39 Moreover, nor is there a test todetermine the factual accuracy of individual judgments. 40 Therefore, theargument that the lack of rules identifying admissible evidence would leadinevitably to less accurate outcomes becomes futile, simply because there isno mechanism to verify the validity of such a conclusion.

2. The Failure of the Exclusionary Solution to Advance Rectitude of Decision

Article 1341 of the French Civil Code, the old interpretation of the bestevidence rule and the rules against hearsay are all examples of rules of exclusion based on a policy choice. In the three examples, the rules indicateto the judge an evidentiary choice, in order to promote the use of morereliable evidence over others, as a means of promoting rectitude of decision.This justification seems to fail to stand a proper scrutiny.

The common law case law has illustrated that it has becomeimpracticable to construct a hierarchical system specifying a list of more

reliable evidence, since different factual situations require differentevidentiary choices. In other words, handling trustworthiness as a matter of admissibility, rather than weight, has provided more problems than solutions.This has made the system move forward towards a solution that favours the

37 European recommendation on abolishing this rule has been rejected by France. SeeRecommendation on Harmonization of Laws relating to the Requirement of Written Proof and theAdmissibility of Reproductions of Documents and Recording on Computers, Footnote 1, COUNCIL OF

EUROPE R ECOMMENDATION R (81) 20 (December 11, 1981).38 See supra note 28.39

J. R AWLS, A THEORY OF JUSTICE 85 (Oxford University Press 1973).40 Zuckerman, supra note 6, at 4.




admission of more relevant evidence by putting emphasis on the fact thattrustworthiness should be handled as a question of weight, rather than of admissibility.41

This distinction is central because weight is a question of fact that the judge has to consider when all the evidence is produced. Conversely,admissibility is a question of law, primarily determined by relevance. 42 Springsteen v Flute International Ltd illustrates the solution of favouring theadmission of all relevant evidence.43 The case revolved around a copyrightdispute, and the main issue was whether Springsteen had assigned copyrightin writing, as required by section 36 (1) of the Copyright Act 1956 (UK).44 Springsteen could neither produce the original nor any copy of the allegedassignment, but he argued that the court should accept secondary evidence

of the assignment, mainly oral testimony of the solicitor who prepared thecontract. The court allowed the witness to give testimony, holding that:

I do not think it is necessary, in connection with the admissibility of secondary evidence, to consider whether more might have been done by way of searching for the document. … [Provided it] was reasonably thorough, albeitfalling short of what might be considered to be exhaustive.45

The claim that admission of relevant evidence, when its reliability isdifficult to test or cannot be put to test at all, may outweigh the problemsgenerated with its exclusion, appears to weaken theoretically andempirically when it is carefully scrutinised. In common law jurisdictions,the exclusionary rules dealing with this type of evidence have been almostcompletely disregarded by the tendency of modern law towards a broader basis of admissibility provided that the basic requirements of admissibilityare met, i.e., the relevancy test is passed and no other legal cause of exclusions exists.

41

C. TAPPER , CROSS AND TAPPER ON EVIDENCE65 (9th edn Butterworths London 1999).42 Admittedly notwithstanding the distinction between admissibility and weight, the latter may stillaffect the former since the sufficiency aspect of relevance depends upon the potential probativeweight of the evidence offered. Id. and see also AAS ZUCKERMAN, PRINCIPLE OF CRIMINAL EVIDENCE 50-3 (Clarendon Press Oxford 1989).43 [1999] EMLR 180 (Ch) (U.K.).44 4 and 5 Eliz 2 c 74.45 Springsteen, supra note 43, at 212. Cf . R v Governor of Pentonville Prison, ex p Osman [1990] 1WLR 277 (QB) 308 (UK) (arguing that all that remains of the best evidence rule is that if a party hasthe original document and does not produce it without reasonable explanation, the court will infer theworst) and Kajala v Noble (1982) 75 Cr App R 149 (Div Ct) 152 (UK) (arguing that the best evidencerule no longer applies and courts admit all relevant evidence). This approach has not been different in

the United States. Cf. United States v Marcantoni 590 F 2d 1324 (5th Cir 1979) 1329-1330, certdenied 441 US 937 (1979).




The reasons why the civil law system maintains an inflexible posture toreconsider the exclusionary solution still needs to be examined andunderstood before one may consider whether transplanting a more flexible

approach, such as the one of the common law illustrated above, is feasible.The remainder of this article will look into the aversion to using witnesses incontract litigation, arguably one of the most common means of evidence incommon law systems. The reason for choosing this rule is simply because itrefers to one of the most startling differences, regarding the use of evidence, between both models. I submit that no ‘transplant’ is likely to be feasible,regardless of how much it may be needed to advance properly rectitude of decision, if this difference is not properly comprehended. I would argue thatthe perception of relevance, not just in its legal setting, i.e. logical and

sufficiency, but also in its underlying epistemological sense, may help us tounderstand this difference.

II. PERCEPTION OF R ELEVANCE

A. Relevance: The Theory and the Courts

In dealing with proof of facts, relevance is a key element of admissibility of evidence in both common and civil law systems, eventhough both systems consider relevance, to a certain extent, a conceptforeign to law. The theoretical definition of relevance used in both legalmodels implies that all judicial evidence, which is logically and sufficiently probative (in French pertinent and concluant), is in general admissible.46

In common law, this two-pronged definition of relevance means that,firstly, evidence must be logically probative in order to be considered andthen that ‘the judge ought to consider whether the evidence which it is proposed to adduce is sufficiently substantial , having regard to the purposeto which it is professedly directed, to make it desirable in the interests of justice that it should be admitted.’(Emphasis added).47 If these two tests are passed, the evidence is admitted unless excluded for other reasons.48 InFrance, this theoretical difference regarding relevance is not foreign to thesystem, 49 but the Court de Cassation has not expressly adopted such a

46 9 C BEUDANT, COURS DE DROIT CIVIL FRANÇAIS [1168] (R Beudant and P Lerebours-Pigeonnièreeds., 2d ed Rousseau & Cie Paris 1953), cf . Thayer; supra note 9, at 264-5. 47 Noor Mohamed v Rex [1949] AC 182 (PC) 192 (Lord du Parcq) (UK).48 Beudant, supra note 46, at [1168] and [1171], Thayer, supra note 9, at 265 and Bentham , supranote 5, at 34 (arguing that delay, expenses and vexation are grounds for exclusion of evidenceotherwise admissible).49

J Chevallier, Le Contrôle de la Cour de Cassation sur la Pertinence de l’offre de preuve [1956](CHRONIQUE) RDS 37, 37 (1956).




distinction. 50 Hence, the difference in the way relevance is assessed bycourts may arguably lead to the inclusion of evidence deemed irrelevant inAnglo-American courts.51 However, this still falls short of explaining the

civil law system’s aversion to using witnesses in contract litigation.

1. Validating the Use of Evidence

Relevance is a wide concept that can be adapted to different legalsystems, different cultures and different times. For instance, ordeals werearguably means used as a substitute for evidence, even though the MiddleAge user of these mechanisms considered ordeals evidence of a judgmentgiven by God. In that system, ordeals (similar to oath or the result of duels)

were believed to be valid means of answering the question, “and so whathappened?” After the judgment of man was substituted for the judgment of God, those irrational mechanisms became irrelevant.

For such a fundamental change to take place, in which judgments werenot given by God through oath, ordeals or duel, but rather by men through judges on the basis of witnesses and documents, a change in the perceptionof evidence must have occurred.52 In other words, if an oath or an ordealwere valid methods with which to ascertain the truth for the users of them inthe early Middle Age, they were not valid any longer by the end of the

Middle Age. This brings to the fore that what relevance of evidence requiresshould be approached from a different angle rather than just its current legalmeaning. Epistemology may help to make sense of this change of perception that validates the use of evidence. I emphasise perception because, as I shall explain below, it will become central to factualdetermination, and therefore central to judgments. If this understanding isaccepted, it appears, then, that relevance is not necessarily an abstractconcept, but rather a relative and tangible one. Moreover, it appears thatrelevance is orientated to support the interests of the system that it is serving.

2. Matter of Perception

The famous statement of Lord Hewart illustrates the importance of perception regarding judgments and tribunal impartiality: “[it] is of

50 P. Thieffry, Quelques Aspects Comparés de la Procédure Civile en France et aux Etats Unis, 36

R EVUE I NTERNATIONAL DE DROIT COMPARÉ 783, 816 (1984). 51 Id .52 C. Donahue, Proof by Witnesses in the Church Courts of Medieval England: an Imperfect

Reception of the Learned Law, in O N THE LAWS AND CUSTOMS OF E NGLAND 133 (M Arnold & otherseds., The University of North Carolina Press Chapel Hill 1981) and Thayer, supra note 9, at 264-5.




possible criminal is preferred to statistics because, paradoxically, the precision of the latter interfered with the function of the legal process:Statistical evidence distracts the fact finder.

This means that statistical evidence was not disfavoured because of irrelevancy, but rather due to its mathematical precision. In other words, itwas feared that it would have distorted the value of all the other evidence inthe case. In this sense, statistical evidence is likely to interfere with theweighing-up of the rest of the evidence, amongst which statistics shouldcount as one more piece of circumstantial evidence, but not more (thisargument will be expanded further below). Professor Nesson explained thatalthough statistical proof suggests a sufficiently high numerical probabilityof liability, the absence of deference-inducing mechanisms in the judicial

process is such that the public are unable to view the verdict against thedefendant as a statement about what happened. This, according to Professor Nesson, precludes both acceptance of the verdicts and internalization of theunderlying norms.58 In other words, the fear is that the quantification of the probability of liability or guiltiness is likely to be decided on grounds of the perceived overwhelming strength of the statistics alone, rather than on theweight of all the evidence.59

B. Epistemological Difference

1. Perception and Reality

The problem with perception now becomes evident. If the system’sfoundations rest on the assumption that determination of facts, and therebythe judgment, is a matter of probability, a judgment contrary to statisticalevidence, e.g., against one in twelve million, appears to put the wholesystem at odds. This result is, however, caused by the perception of therelevancy of the statistical evidence, rather than the evidential strength of the statistical evidence itself.60

Firstly, statistical evidence is not direct evidence, but is merelycircumstantial evidence inviting the fact finder to infer that the defendants

58 Id. at 1366-7. See also L.H. Tribe, Trial by Mathematics: Precision and Ritual in the Legal Process,84 HARVARD LAW R EVIEW 1329, 1350 (1971) (arguing that although the use of mathematicalevidence, e.g. statistics, is appropriate for the enhancement of the determination of past events “when properly combined with other, more conventional, evidence in the same case,” the difficulty lies infinding an acceptable way of combining both-mathematical and non-mathematical-withoutconflicting with other procedural values).59 Tribe, supra note 58, at 1371.60

Id. at 1359 (arguing that the usefulness of statistics in factual determination is exaggerated and thatthis exaggeration may likely lead to inaccurate conclusions).




are likely to be the perpetrators, from the statistical fact that the chances of the six characteristics matching were one in twelve million. Secondly, as amatter of evidence law, this circumstantial evidence is not stronger than, for

instance, a can with a trace of beer found in a car in a case where the driver is charged with negligent driving under the influence of alcohol. As soon asa satisfactory explanation appears for the can being inside the car, theevidence’s strength diminishes, if not vanishes.

This problem with perception of evidence also conflicts with thefunction of the legal process in the French legal system. As opposed to thestatistics perceived as exaggeratedly strong evidence, however, witnessesare perceived as an extremely deceptive means of proof, because of their weakness. Witnesses’ testimony is a malleable means of proof developed

through interrogatories and subject to change through questioning.Conversely, documents predate litigation. There is no possible change inwhat is written. Moreover, they speak directly to the judge without any needfor interrogation.

2. Perception and the Legal System

The aversion to using witnesses emerges clear-cut, explained by the perception one appears to have of them, rather than to their individual

evidential strength. The effect of this perception is fuelled by another peculiar feature of the French system of civil procedure: the powers investedin the judge to elicit facts and gather evidence. These powers give to thelitigants the perception that, at least indirectly, the judge is somehow alsoliable for the failure of a party to prove a claim.61

By means of illustration, let us return to the case of the collectablecar.62 Let us assume that the parties had an authentic documentation statingthat Perroy and Bro bought the car and owned it in equal shares. Such adocument would have left little room for interpretation as to the fact that

Perroy and Bro owned the car in equal shares. Even if the documenthappened to be a forgery, authentication, which is the documentarycorollary to credibility, is an external process in which both parties intervene.Let us move back to the current factual scenario, but assume that theexclusionary rule does not apply and that half of the witnesses proposed bythe litigants support Perroy’s claim and the other half support Bro’s defence.In assessing the credibility of the witnesses, the judge would have had to

61 M.R. DAMAŠKA, THE FACES OF JUSTICE AND STATE AUTHORITY A COMPARATIVE APPROACH TO THE

LEGAL PROCESS 121 (Yale University Press, New Haven 1986).62 CASS 1e CIV December 3, 1996 [1996] Bull CIV I Nº 431, at 301 (Fr.).




was substituted for the oath as a security for preventing and detecting perjury.In other words, the low perception of the value of the testimony of

witnesses gradually changed when parties became the primary source of

evidence. This was eventually complemented when the mechanism to testthe trustworthiness of their testimony turned into an open and public event,where the questions, rather than the oath, became the tool with which to testthe reliability of the evidence.

The mechanism to interrogate witnesses in France, the enquête, has,however, remained almost unchanged since its introduction by King Louis IXin the 13th century.71 There is rarely direct assessment by the fact finder incomplex cases where a tribunal of three members intervenes, let alone director cross-examination. In other words, the oath and the criminal charges for

perjury are still the main tools that a judge uses to assess the reliability of thetestimony.72 Concerning parties, they are still legally incompetent to givetestimony in court as witnesses;73 furthermore, rather convoluted mechanismsare used to obtain information of evidentiary value from the parties.74

This approach shows that the low perception of the value of thetestimony of witnesses is not only a matter of evidence, but it is also linked toan epistemological perception. Further, the legal system has admittedly beenunhelpful in changing it. This, in turn, shows an important contrast with thecommon law system, which managed to adapt itself better to changes, e.g. to

impose the use of written evidence to record transactions, the same result thatthe French legislator purported to achieve, but without excluding witnesses.In light of this rather slow evolution of the legal system to satisfy modernneeds in French litigation,75 it is not surprising that the low perception of testimonial evidence in France has remained unaltered since 1566.

71 Ordonnance sur les Duels et la Preuve par Témoins 1260 (Fr) ss 2-7 in 1 R ECUEIL GÉNÉRAL DES

A NCIENNES LOIS FRANÇAISES DEPUIS L’AN 420 JUSQU’À LA R ÉVOLUTION DE 1789, 285-8 (FA Isambert,Decrusy and AJL Jourdan eds., Librairie de Plon Frère Paris 1822).72

Nouveau Code de Procédure Civile [N.C.P.C.] art. 211 & Code pénal [C. Pen.] art. 434-13 (Fr.).73 Cass. req. July 21, 1880 [1881] 1 DP 201, 202 (Fr.), cf . J. VINCENT & S. GUINCHARD, PROCÉDURE

CIVILE (25 edn Dalloz Paris, 1999) [1093]. This is in contraction to case law in this matter decided bythe European Court of Human Rights, who declared incompatible with Article 6 of the EuropeanConvention on Human Rights a similar prohibition under the old Dutch Code of Civil Procedure(Wetboek van Burgerlijke Rechtsvordering) whereby civil litigants were not allowed to depose aswitness in their own case. The importance of the European Court of Human Rights’ decision for French law is that the prohibition of the old Dutch Code of Civil Procedure stemmed from French law. Dombo Beheer BV v The Netherlands Serie A Nº 274 (1994) 18 EHRR 213 [32]-[35].74 See A. PONSARD, Rapport Français, 38 LA VÉRITÉ ET LE DROIT 688-90 (Trabaux de l’AssociationHenri Capitant ed., Economica Paris 1987).75 The civil procedure reform of 1970s is the most important reform in French civil procedure in the

last two centuries and the inclusion of documents in electronic format as preuve littérale in 2000 isthe most dramatic reform in the law of evidence since 1566.




CONCLUSION

From this analysis, it emerges that the legal systems are not as different

as the stereotyped descriptions appear to show. Particularly, regarding theuse of evidence, the analysis has illustrated that more often than not, thesystems share a remedy, namely exclusion of relevant evidence, for acommon problem: The risks that its use may mislead the fact finder undermining the acceptance of the judgment.

The analysis has also shown that in both systems, the exclusionarysolution became a problem. Moreover, the particular conceptual context inwhich the exclusion of relevant evidence has taken place in each of the jurisdictions prevents one from entering into doctrinal debates within the

jurisdictions themselves. Most importantly, it has contributed to theoverlooking of the fact that they were excluding relevant evidence for similar reasons and causing similar problems with rectitude of decision.

This is admittedly a modest finding, but its relevance should not beunderestimated. It illustrates the fact that the systems are not asdiametrically opposed as it appears. Moreover, the fact that evidence could be reduced to illustrate a means, which deals with factual uncertainty in bothsystems, opens a wide horizon to search for functional equivalents, as theexclusionary rules have shown in this analysis.

There remain important differences, however, as the epistemological perception of relevance has illustrated. The presentation of Daniel Vaillantin the Senate appears to make sense now. The French system of proof incivil litigation is effectively mid-way between the “legal and free proof principle.” This is not due to any legal rule as the Ministry claimed, butsimply because epistemologically, rather than legally, the validation of theuse of evidence favours one over the other.

There are, therefore, both legal and cultural needs that have to besatisfied in order effectively to promote rectitude of decision. The former

requires a change of the rule of law and the latter a cultural change in the perception of relevance regarding evidence. These changes, however,require an understanding (and this and other comparative work may help inthis process), firstly, that there is no hierarchy of evidence within the legalsystem, thus witnesses are certainly neither less nor more inherentlytrustworthy than any other evidence. Secondly, that although rectitude of decision may be affected by the proper use of witnesses, even more errorsand unfairness may derive by excluding their relevant testimonies.



690

CRIME AND CRIMINOLOGICAL STUDIES FROM

AFRICAN TRADITIONAL PERSPECTIVES: A CASE

STUDY ON NIGERIA

Adeniyi Olatunbosuna

Before the adventure of Europeans to the African Continent, African

communities had their indigenous ideas on crime and victim logical studies.

To understand African perspectives on crime and criminal justice process,

there is an intrinsic need to understand their past through a reconstruction

based on a collation and articulation of their beliefs and traditions. This

paper seeks to provide insights into the background on the meaning of

crime and criminal policy in African societies with a view to presenting an

accurate picture of the people in their pre-contemporary stage with a bid tounravel the trends of development in modern times. The paper also attempts

to correct misinformation about earlier periods of African history and legal

traditions that has often been taken as knowledge of African laws.

I NTRODUCTION

From relatively recent development in the field of criminal law leading

to the study of criminology in Europe as a separate branch of law with

multi-disciplinary sources of data for its contents, there has been a little

knowledge about the past of many African peoples idea of crime, albeitcriminology apparently because of dearth of data as the practitioners and

other stake holders involved in the administration of criminal justice system

were not lettered. Under Western jurisdictions, for any conduct to be rightly

classified as a crime for example in English jurisprudence, it must be

expressly forbidden and the punishment prescribed in a statute. These

requirements formed the basis for the abolishment of African customary

criminal law in many post-colonial African independent states. Subjecting

the legality of customary criminal justice system to the requirement of

codification underscores a correspondingly low level of understanding of African indigenous cultures and values. Of significant effect of this trend is

that virtually in all parts of Africa from the 19th Century, indigenous legal

cultures have been steadily going into extinction with the successive rise in

the adoption of European jurisprudence.

Consequently, knowledge of the African legal history has continued to

shrink and vanish due to lack of adequate attention and authoritatively

Ph.D., Faculty of Law, Obafemi Awolowo University, ILE-IFE, Nigeria.




written literature. The paper further attempts to bring about a conversation

on the extant vestiges of African societies and cultures before the pervading

force of globalization finally sweep them away.

I. AFRICAN IDEA OF CRIME

Crime from the African indigenous perspective, is an act or omission

which brings harm, suffer or injury to a person and is not justifiably

permissible by traditions, customs and practices of a given community. The

key essential classification of a conduct as criminal is the proof that such a

conduct offends the strong and definite collective feelings or psyche of the

generality of the society or community. Comparatively, African customary

jurisprudence sharply contradicts, contrasts and at variance with Western jurisprudence. African idea of law and justice is impatient to wait for the

European concept of justice especially common law systems that are

intrinsically technical, in nature. Thus, the western culture which

emphasizes punitive approach to the treatment of offenders until recently

when non punitive measures are being steadily addressed through

criminological studies was strange to the African concept of justice and

treatment of offenders.

Victims of crimes have always been accorded significant role in the

administration of customary criminal justice which from time immemorial promote compensation, restitution and arbitration among other forms of

alternatives remedies to imprisonment. Even at the sentencing stage,

individualization approach, reconciliation of the accused with the victims

and compounding of punishment took significant place in the determination

of guilt and application of punishment Suffice to say at this juncture that

most African continent comprises of heterogeneous independent nations

with innumerable communities, ethnic divide, languages, dialects,

indigenous laws and customs. Perhaps with the exceptions of Islamic

countries operating personal law of sharia, the remaining majority of African nations was governed and is still being governed by customary laws

which are rooted in proverbs and of enduring normative values.

Predominantly these laws were unwritten, yet there were largely written in

the minds of its people and tenaciously guided and honoured. The beauty of

African customary law is that it is dynamic and susceptible to changes.

Using Nigeria as a case study, with population of about 150 million, over

250 languages and close to 5,000 thousand dialects in mother tongues of the

people exhibiting their cultural diversity, it is imperative to beam a search

light on the their legal culture and heritage as a form of academic obligation




and moral burden on the part of this author as well as other criminal law

experts/criminologists interested in the study of African customary law to

bring into the gathering of experts of this magnitude, the criminological

perspectives of African criminal jurisprudence.

II. AFRICAN TRADITIONAL CONCEPT OF CRIME

African tradition consists of opinion, belief and custom handed down

from ancestors to posterity. Tradition presupposes modernity, in the sense

that it envisages that such ideas will be carried into the present and recent

generations. The usual practice is to refer to these pristine habits little

unsullied by exotic practices as traditional. Africans prefer their practices

to be described as traditional, while their counterpart from Europe fondlyrefer to theirs as modern1. So far as these habits are within the parameters

of our ethnic environments and not reduced into legislation, the appellation

“traditional” covers them, notwithstanding modifications that these habits

have gone through in the contemporary society. This explains why ideas

which are traceable to customs and practices outside the jurisdictions of

African countries will be referred to as modern although such habits are

“traditional” in the country of origin. Suffice to say that the proper notion

is to classify such habits as “alien” or albeit “foreign” especially if they

have been introduced into our country by way of legislation or through judicial decisions.

III. AFRICAN CRIMINAL POLICY

To understand the meaning and extent of criminal policy of a society, it

is imperative to understudy that community. This is because the concept and

definition of crime are inextricably intertwined with the societal attitude and

subject to the peoples’ response

To the forces and events in their environment, the idea of crime existed

in small but numerous societies making up the African continent each

independent and deciding its destiny in accordance with its own ideas of

rights, laws and security. As observed by Karibi-Whyte, some with central

political organization, having permanent judicial institution, administrative

organization, and machinery for law enforcement; while others lack these

institutions, but make ad hoc arrangements whenever the occasion arose2.

1 K ARIBI-WHYTE, A.G., CRIMINAL POLICY: TRADITIONAL & MODERN TRENDS 4, 5 (Nigerian Law

Publications, Lagos 1988).2 Ibid . p11.




In European societies, there is interdependence of law on morals as can

be seen in most European languages, there are no separate words for

“rights” and “law”; the German Recht, the French Droit, the Italian Diritto ,

and the Spanish Derecho 3

. They make no distinction between law and right.

IV. A NALYSIS OF CUSTOMARY CRIMINAL LAW

Customary criminal law existed in many African societies including

Nigeria before the British introduced common law of crimes by Ordinance

No.3 of 18634. Although, this law provided for the observance and the

enforcement of local law and custom in native courts, they were denied of

all traditional authority. The effect of the reception of English law was the

abolition of customs regarded as in human and barbaric such as the trials by ordeal and witchcraft practices5

and the passing of legislation against

slavery6.Also, the received English law, was different in a sense from the

reception and adaptation of Roman Law in Europe, the spread of the

French Civil Code to Central and South American States, the Swiss Code

to Turkey and the adoption of the German Code by Japan. In most of these

instances the reception was a deliberate desire of the receiving nations and

these laws were mostly adapted to suit the conditions of the people living

in such countries.

Thus, the customary law of crimes was measured by the standard of common law of crimes. In fact, the whole of customary laws was permitted

to operate in so far as it was not repugnant to natural justice, equity and

good conscience. Even though, the justice was not according to Nigerian

standards, while the measurement of equity was hinged on English law and

conscience was tied to Western and Christian idea.

It is remarkable to point out the two main characteristics of customary

criminal law, is that it is unwritten and derives its force on its acceptance in

the community. Many European historians and jurists believed and recorded

that Africans lived in a state of anarchy without laws before the sojourn of Europeans powers arguing that might was right, the strong and the rich

suppressed the weak and poor. It has been said by Holleman7, that there is

3 See Sir P.Vinogradoff, COMMON SENSE IN LAW 18 (3d ed. 1959), quoted in Cultural Conflicts in the

Criminal Law of Southern Nigeria-With Special Relevance to Homicide, L.O. Aremu, Ph.D. thesisunpublished, London School of Economics and Political Science 48 (August 1971).4 See Section 1. See also, LUGARD-DUAL MANDATE, PERHAM-NATIVE ADMINISTRATION IN NIGERIA;R EX NIVEN, HOW NIGERIA IS GOVERNED; K. O NWUKA DIKE, TRADE AND POLITICS IN THE NIGER DELTA

1830-1885: A N I NTRODUCTION TO THE ECONOMIC AND POLITICAL HISTORY OF NIGERA.5 By the Ordeal, WITCHCRAFT AND JUJU PROCLAMATION, No.13 of 1903.6

Slave Dealing Proclamation, No.5 of 1901.7 HOLLEMAN J.F., ISSUES IN AFRICAN LAW (1974).




taboos). It is important to stress that one of the grudges of English standard

of testing acceptable crimes or criminal trial is the condemnation of

witchcraft and trial by ordeal, nonetheless witchcraft had sometime in the

past a recognized crime in England, yet the English repulsively condemnedthe belief as if it has never been heard before. Even though trial by ordeal

was condemned as barbaric habit, it had its own good side at that time,

forms of ordeals were used to detect the guilty parties in criminal trials

where this was done in cases such as witchcraft and adultery where there

was either no other evidence available or where the facts is shrouded in

mystery and there was no other way of getting at the truth. No human device

is perfect; a more scientific method developed in recent times is the lie

detector machine. The essence of both is to serve as aid to administration of

justice among the people. The belief of the Africans then was that aspects of trial by ordeal was a procedure known and acceptable to them in resolving

some victimless offences and where proof of guilt could not be established

with direct evidence or non availability of eye witnesses account. Contrary

to the impression created that ordeals were principally based on taboos and

poisons, not in all situations. Some ordeals referred to as taboos were just

simple fanciful work of arts and indigenous experiments in terms of

sacrifices and expert display of skills bound up with the process of detecting,

judging and punishing criminals. These practices and habits were rooted in

religion of the people, which were also part of their law and life in general.As religion invariably supplied the content of moral rules, it would therefore

not dialectically at variance with the societal belief that was not yet

influenced by Christians ethics to reflect its cultural ideals that would

necessarily different from those of another religion and culture.

In the same vein, the measurement of non-codification of conducts

regarded as crimes was clearly understandable in a society that is not literate.

These antisocial conducts were clearly understood and accepted as mores of

the society handed down from generation to generation in terms of foreklore,

proverbs, idioms, and incantations. In the same manner, common lawcrimes were never codified, even up to the present day. As rightly observed

by Elliot and Quinn13

, at the moment the criminal law is inaccessible to the

public because it is contained in a wide range of legislation and judicial

decisions which can be difficult for lawyers to understand, let alone lay

people. This has led some to favour the creation of a criminal code which

would bring together in one accessible book the key legislative provisions of

the major criminal offences. The criminal law in most other countries is

13

CATHERINE ELLIOTT & FRANCES QUINN, CRIMINAL LAW 391, 392 (Pearson Longman, Harlow,England, etc., 6th ed. 2006).




codified. The Law Commission14

continues to undertake a considerable

amount of work towards the development of an English Criminal Code,15

but for the time being there does not appear to be the political will to

introduce such a code.16

The various communities of Nigeria had judicial systems that were

administered in their respective domains, which had the primary objective

of achieving peace-keeping and maintenance of the social equilibrium17

. A

community in traditional settings in African societies was a corporate

entity with a network of interrelated kinship pattern. The traditional

judicial system comprised of the chiefs, or the council of elders in a chief

less society, and his council of advisers to administer justices to communal

cases and individual cases that could not be resolved by elders of a family

unit, who ordinarily acted as court of first instance as peace makers calledupon on ad hoc bases to adjudicate on various matters on civil and

criminal cases and for the overall preservation of the society physically or

spiritually whenever the peace of the whole society is being or is likely to

be threatened.

V. EVOLUTION OF CRIMINOLOGICAL THOUGHTS

As earlier stated, law in the pre-colonial era of Nigeria was unwritten,

but its principles were sometimes expressed in proverbs, that were latent inthe minds of the people who are meant to obey these laws and in the minds

of the ruling chiefs that applied and ensured its enforcement. These

traditional laws though largely unwritten, was more real and effective than

the colonial and post-colonial written laws of crimes, in the sense that

people complied with it more as effective instruments in regulating their

society. Moreover, in the hierarchy of courts and adjudication process then,

14 Created in 1965, by Law Commission Act with the task to codify the law, but to date the

Commission has only had very limited success.15 It produced a series of working papers from 1968-1974, but announced in 1980 that its shortage of

resources would not allow it to continue, and appealed for help with the task. The society of PublicTeachers of Law responded, and established a committee headed by Sir J. C.Smith a first draft was

produced in 1985 and after a wide consultation a final Draft Code was published in 1989, but this hasnever been legislated.16 The draft code has never been presented to Parliament. In 2001 the Government published anofficial paper, Criminal Justice: The Way Ahead. This paper was presented to Parliament by the

Home Secretary in February of that year as the Government’s vision of the future for criminal justice.See also Bingham, Lord Justice, A Criminal Code: Must We Wait Forever?, CRIMINAL LAW R EVIEW

694; Ferguson, P., Codifying Criminal Law(2): The Scots and English Draft Codes Compared ,CRIMINAL LAW R EVIEW 105 (2004); Hare, I., R v Savage, DPP v Parmenter, A Compelling Case for

the Code, 56 MODERN LAW R EVIEW 74 (1993).17 Elias T.O., 1972 Adewoye, O., 1977.




CONCLUSION

The African continent is widely endowed with traditions, customs,

norms and values as enshrined in the various traditional system of administration of justice. A large number of systems of criminal law existed

in the African Continent, particularly in that area now known as Nigeria,

administered by the political entity ensuring the enforcement of certain

standards of behaviour and imposing punishment for their breach. Although,

the traditional mode of administration of justice in Africa has its

imperfections such as trial by ordeal is a misnomer practice which had its

root in the belief in the supernatural20

. The underlying philosophy of this

practice is hinged on the understanding that the accuser and the accused in

civil disputes or suspected persons in criminal offences could be subjectedto an ordeal and whoever survived would be adjudged to be the right.

Whenever there were doubts, ordeals were used based on the underlying

belief that if human attempts to get at the truth failed, at least the unseen

forces would not err.

Another notable shortcoming of the African system of administering

justice is occasional preference of status. At times preferential treatment or

special recognition is accorded a senior or superior party (e.g., a warrior,

husband or even as a man). Nevertheless, African juristic thoughts are

rooted in laudable ideas, which can be of importance to western jurisprudence.

For example, unlike the conventional criminal law adopted from the

British which emphasizes individualism of punishment based on the

principle of deterrence, retribution, elimination, and rehabilitation

customary criminal justice system on the other hand, is founded on the need

for social cohesion and collectivism in criminal responsibility tied to the

pivotal role the society plays in ensuring harmonious relation in the

community.

More, importantly, the philosophy behind Customary Criminal processis predicated on the belief that the purpose of law is the maintenance of

peace, order and equity. In African jurisprudence, the first and paramount

duty of the Court in the resolution of a dispute is it civil or criminal in

nature is reconciliation and not the pursuit of abstract justice.21

On the

Contrary, the Winner takes all syndromes for which English pattern of

20 See AWOLALU & DOPAMU, WEST AFRICAN TRADITIONAL R ELIGION (Onibonoje Press, Nigeria 1979). Note that Trial by Ordeal has been abolished under the Criminal Procedure Act.21

See A.P. A NYEBE, CUSTOMARY LAW: THE WAR WITHOUT ARMS (Fourth Dimension Publishers, Nigeria 1985).




criminal proceeding is noted for customary criminal trial attempts to

apportion blame between the accuser and the accused. In many criminal

trials, the breaking and sharing of Kola nuts often precedes proceeding

while the parties, witness and spectator partook in the sharing of kola nut asa sacred act of Communion.

22It is sufficient to say that an attempt has been

made in this paper to analyse the African mode of juristic thought and the

workability of fusing of customary law ideals with the principles of general

law of crime.