Public Administration: Functions, Competencies, and Conflicts
General Government Functions
a. Public Purpose and Distribution of Competencies
Administrative entities possess both legal capacity and capacity to act. Their capacity to act can be categorized into two types: private capacity and public-administrative capacity. Private capacity enables public authorities to establish legal relationships based on the willingness of other legal entities. Conversely, public-administrative capacity empowers them to unilaterally create and impose legal relationships.
The capacity to act, whether for private entities or government bodies, can be subject to full or partial restrictions as defined by laws. These laws determine the administrative capacity of each entity. The legal framework also establishes the public interest purposes and the competence of each public administration. This competence has two dimensions: one that pertains to the administration’s general responsibilities and another that outlines its role in relation to other public authorities.
Competence clarifies the administration’s overall duties and how these duties are distributed among various public administrations. Two common approaches are used to define the jurisdiction of public authorities: the general clause on competence and the exhaustive enumeration of powers.
The general clause provides a broad framework for public administration action. It grants the legislature the authority to define public purposes and allows for intervention in social relations. On the other hand, the exhaustive enumeration of powers explicitly lists the specific purposes that public authorities are responsible for addressing. However, this approach can sometimes hinder public authorities from acting in situations or areas where their involvement is necessary.
It’s important to note that public authorities can utilize both public power and private means to achieve public purposes. They may employ private means when necessary to fulfill needs or address issues that the legislature has not explicitly designated as public.
Positive law often combines the general competence clause with an exhaustive enumeration of administrative aims. In such cases, the general declaration takes precedence over specific competence stipulations.
This approach results in a system with a relatively comprehensive list of public purposes and entities vested with administrative power. It establishes a clear framework for determining which public purposes, or aspects thereof, are to be fulfilled by specific government entities.
The distribution of responsibilities is typically based on subject matter (material jurisdiction) or territorial jurisdiction, often combining both approaches.
b. Centralization and Decentralization
The terms “centralization” and “decentralization” describe how a country’s administration is structured. Centralization implies that the state holds primary responsibility for fulfilling most public purposes. Conversely, decentralization signifies that other administrative entities besides the state are largely responsible for addressing public needs.
Centralization, in another sense, refers to the concentration of knowledge, decision-making, and control. This centralized approach, as exemplified by Napoleon’s army, aims to ensure consistent and widespread implementation of directives.
Administrative centralization occurs when the state assumes responsibilities that would otherwise fall under the purview of other entities. Decentralization, on the other hand, involves the transfer of administrative powers from the state to other public entities.
These concepts can also be applied to non-state authorities. Higher-level management centralizes by absorbing powers from lower levels, while decentralization empowers lower entities by delegating responsibilities.
As a general rule, centralization at a higher management level leads to increased competence for that level and decreased competence for lower-level entities.
c. Delegations and Intersubjective Competition
Laws may grant public authorities the ability to delegate their powers to other public authorities. This transfer of power from one public administration to another is known as intersubjective delegation and impacts the distribution of competence.
Delegation of competence is executed through a decision by the delegating authority’s highest organ or by a law authorizing such delegation.
d. Conflict and Competition Issues
Defining the competence of public administrations is a complex process aimed at preventing conflicts with the legislative and judicial branches, as well as with other public administrations. Article 56 of the Constitution states that the King arbitrates and ensures the smooth functioning of institutions. However, this role differs from resolving conflicts between institutions. Consequently, the Constitutional Court is responsible for addressing conflicts between the constitutional organs of the state.