Hyvän hallinnon muunnelmat : Julkisoikeudellinen tutkimus

This doctoral thesis analyses the concepts of good governance and good administration. The hypothesis is that the concepts are radically indeterminate and over-inclusive. In the study the mechanisms of this indeterminacy are examined: why are the concepts indeterminate; how does the indeterminacy work and, indeed, is it by any means plausible to try to define the concepts in a closed way? Therefore, the study focuses on various current perspectives, from which the concepts of good governance and good administration are relevant and what kind of discursive contents they may include. The approach is both legal (a right to good administration) and one of moral philosophy and discourse analysis. It appears that under the meta-discourse of good governance and good administration there are different sub-discourses: at least a legal sub-discourse, a moral/ethical sub-discourse and sub-discourses concerning economic effectiveness and the promotion of societal and economic development. The main claim is that the various sub-discourses do not necessarily identify each other s value premises and conceptual underpinnings: for which value could the attribute good be substituted in different discourses (for example, good as legal, good as ethical and so on)? The underlying presumption is, of course, that values are ultimately subjective and incommensurable. One possible way of trying to resolve the dynamics of possible discourse collisions is to employ the systems theory approach. Can the different discourses be interpreted as autopoietic systems, which create and change themselves according to their own criteria and are formed around a binary code? Can the different discourses be reconciled or are they indifferent or hostile towards each other? Is there a hegemonic super discourse or is the construction of a correct meaning purely contextual? The questions come back to the notions of administration and governance themselves the terms the good in its polymorphic ways is attempting to define. Do they engage different political rationalities? It can be suggested that administration is labelled by instrumental reason, governance by teleological reason. In the final analysis, the most crucial factor is that of power. It is about a Schmittian battle of concepts; how meanings are constructed in the interplay between conceptual ambiguity and social power. Thus, the study deals with administrative law, legal theory and the limits of law from the perspective of revealing critique.

O dever constitucional de eficiência administrativa na jurisprudência do Supremo Tribunal Federal

O dever constitucional de eficiência administrativa consiste em norma reitora da atividade regulatória e das demais funções estatais. Este trabalho tem o objetivo de investigar seus sentidos, os tipos de norma em que se classifica e as estruturas argumentativas para a sua aplicação. Entende-se, por sentidos, os critérios usados para se considerar que uma conduta ou medida cumpre ou viola o dever de eficiência, incluindo consideração da relação entre meios para o exercício da atividade administrativa e resultados dessa atividade. Parte-se de diagnóstico de indefinição conceitual, na literatura jurídica brasileira, acerca desse dever constitucional, para investigar a existência de subsídios, na jurisprudência do Supremo Tribunal Federal, que viabilizem elaboração de conceito. Desse modo, verifica-se, na literatura, multiplicidade de definições. Além disso, o aspecto da análise custo-benefício, referido tanto na literatura sobre economicidade quanto nos textos sobre análise econômica do direito, sugere que o assunto também possa ser abordado de modo a correlacioná-lo ao conceito econômico de eficiência de Kaldor-Hicks ou de maximização da riqueza. Na jurisprudência, foi encontrada grande quantidade de sentidos de eficiência, a indicar que o STF pode não ter um posicionamento claro, senão em relação à concepção do dever constitucional de eficiência como um todo, pelo menos em relação a aspectos do conceito, a implicar a necessidade de elaboração, pelo tribunal, casuisticamente, de critérios para considerar que determinada conduta ou medida cumpre ou viola esse dever constitucional. Verificou-se, ainda, a ocorrência de aparentes divergências entre os ministros não apenas com relação à solução concreta de um caso, mas com relação à definição, em um mesmo caso, do sentido do dever de eficiência. Não se pode afirmar, no entanto, com segurança, que a concepção do dever de eficiência em um acórdão seja determinante, no STF, para a orientação dos votos. Ainda assim, um mesmo caso pode ter soluções distintas a depender do sentido de eficiência que se adote. Ademais, os acórdãos que parecem proceder a análise custo-benefício não se parecem referir a conceitos ou a critérios de eficiência econômica para fundamentar essa análise. Esses acórdãos também raramente fazem referência a dados empíricos. Quanto aos tipos de norma às estruturas argumentativas para aplicação, a literatura faz referência a teorias incompatíveis que dificultam compreender de maneira inequívoca como ocorre essa aplicação. O STF, a seu turno, faz uso de pelo menos 3 (três) estruturas argumentativas para aplicar o dever de eficiência: o consequencialismo, a análise custo-benefício e a ponderação de normas. O uso concomitante da análise custo-benefício e da ponderação de normas, contudo, enseja confusão entre o dever de eficiência e a máxima da proporcionalidade. Nesse contexto, a proposta conceitual busca tornar claros os sentidos, os tipos de norma e os modos de aplicação do dever constitucional de eficiência, mediante adoção de referencial teórico único que seja compatível com os achados de jurisprudência. Sendo assim, propõe-se a classificação do dever de eficiência como sobreprincípio e do dever de economicidade como postulado, com referência às concepções teóricas de Humberto Ávila, buscando-se evitar incorrer nos problemas diagnosticados na doutrina e na jurisprudência.

As responsabilidades decorrentes do desvio de poder na Administração Pública

Pós-graduação em Direito - FCHS

A influência política na gestão das empresas estatais à luz do direito fundamental à boa administração e da governança corporativa e pública

This study is dedicated to explain the extent to which political influence in the management of state-owned enterprises can be considered legitimate in the light of the fundamental right to good governance and corporate and public governance, for which was undertaken bibliographical and documentary research guided by the deductive method of work, in which were investigated and presented concepts and issues relating to the State, Government, politics, Public Administration, constitutional principles of Public Administration, the fundamental right to good administration, corporate and public governance and state enterprises. Based on the assumptions found in the works and consulted laws it was possible to conclude that the political influence in state-owned enterprises management can be considered legitimate in the light of the fundamental right to good governance if it promotes the public interest and the public purposes achievement, effectively, efficiently and if it preserves the citizens' rights and the principles and rules that make up the legal framework for public administration; and can be considered legitimate in the light of corporate and public governance to the extent that, in a transparent manner and according to the relevant rules, it seeks not the private benefit of politicians, but to promote the public interest or, in other words, the increase of public value produced by them, while protecting and guaranteeing the rights of its stakeholders and shareholders.

O controlo do circuito, da tramitação, da recuperação dos documentos e a legislação nos arquivos municipais de Moçambique

Este estudo tem como objectivo conciliar aspectos da Arquivística à Boa Administração através da gestão dos documentos com efoque no controlo do circuito, da tramitação, da recuperação dos documentos e a legislação nos arquivos municipais em Moçambique no período 1933-2007. O estudo realizado em três universos: municípios de Maputo, da Beira e de Quelimane, em que se confirma que os instrumentos de controlo utilizados na circulação e recuperação dos documentos contribuem para uma boa governação, garantindo a transparência dos actos administrativos e a salvaguarda dos direitos dos cidadãos. Mostra-se que nunca se deve prescindir quer das actividades que delineiam os macro e micro processos nas instituições quer da definição prévia dos percursos documentais, da regulamentação dos procedimentos, da utilização de técnicas que permitam a recuperação dos documentos e da informação: Mostra-se a importância da formação e do conhecimento dos procedimentos pelos funcionários dos escalões autorizados a realizar, pareceres e despachos, da determinação das formas do controlo documental e da garantia no cumprimento dos prazos estabelecidos para cada percurso e, finalmente, a necessária observância prática da legislação criada para esse efeito. ABSTRACT; This case study has as a main objective the reconciliation of the filing aspects with a good Administration though the management of documents and its network, specially in the restoring of files and its legislation into the Municipal Archives of Mozambique during the period of 1933-2007. The study was based on three cities where municipal councils were created, namely: Maputo, Beira and Quelimane. Record's contrail tools used either for registering record transactions or for the access of information contained in them, ensure good governance, transparency and protection of citizen rights. We show the necessity of the activities which lead to macro and micro processes within the organization. This requires that records procedures on transactions must be established and so the guidelines for records' contrail, registration and tools for the information retrieval. We indicate procedures to be followed by authorized civil servants, the importance of their practical training and we define types of records' contrail to ensure their preservation and use in order to accomplish the national legislation.

Financing Michigan highways, roads, and streets, 1910-1946. Prepared in cooperation with Public Roads Administration, Federal Works Agency for Michigan Good Roads Federation Highway Study Committee.

Mode of access: Internet.

Inter-agency working : good intentions and interaction dynamics

This paper explores inter-agency working and examines the implications of inter-agency operations for delivering multi-domain service outcomes. Cross-agency collaborative approaches to service delivery are suggested to provide the vehicle for achieving integrated service and policy goals. However, it is argued these need to be crafted ‘fit’ for purpose’ and may not be the requisite approach for all joint purposes. Moreover, some commentators suggest that the optimism about these partnership arrangements and cross-agency actions to resolve complex multi-dimensional problems may be misplaced and propose that further research into the actual rather than desired consequences of these arrangements may find that, at times, partnership working creates negative effects. While collaboration and partnerships are often framed as the way to achieve real breakthroughs in service delivery across agencies, there remain key challenges to interagency working. As more and insistent calls for agencies and other community actors to work together in resolving complex social problems are heeded, the implications of working across organizational boundaries need to be further investigated. This paper investigates cases of inter-agency programmes to understand the dimensions and limitations of inter-agency working. The paper concludes by offering a framework for better inter-agency working that has applicability across all sectors.

Impeding good governance implementation in Indonesian regional government : the effect of a bureaucratic generation gap

The implementation of ‘good governance’ in Indonesia’s regional government sector became a central tenet in governance research following the introduction of the national code for governance in 2006. The code was originally drafted in 1999 as a response to the Asian financial crises and many cases of unearthed corruption, collusion, and nepotism. It was reviewed in 2001 and again in 2006 to incorporate relevant political, economical, and social developments. Even though the national code exists along with many regional government decrees on good governance, the extent of implementation of the tenets of good governance in Indonesia’s regional government is still questioned. Previous research on good governance implementation in Indonesian regional government (Mardiasmo, Barnes and Sakurai, 2008) identified differences in the nature and depth of implementation between various Indonesian regional governments. This paper analyses and extends this recent work and explores key factors that may impede the implementation and sustained application of governance practices across regional settings. The bureaucratic culture of Indonesian regional government is one that has been shaped for over approximately 30 years, in particular during that of the Soeharto regime. Previous research on this regime suggests a bureaucratic culture with a mix of positive and negative aspects. On one hand Soeharto’s regime resulted in strong development growth and strong economic fundamentals, resulting in Indonesia being recognised as one of the Asian economic tigers prior to the 1997 Asian financial crises. The financial crises however revealed a bureaucratic culture that was rife with corruption, collusion, and nepotism. Although subsequent Indonesian governments have been committed to eradicating entrenched practices it seems apparent that the culture is ingrained within the bureaucracy and eradication of it will take time. Informants from regional government agree with this observation, as they identify good governance as an innovative mechanism and to implement it will mean a deviation from the “old ways.” Thus there is a need for a “changed” mind set in order to implement sustained governance practices. Such an exercise has proven to be challenging so far, as there is “hidden” resistance from within the bureaucracy to change its ways. The inertia of such bureaucratic cultures forms a tension against the opportunity for the implementation of good governance. From this context an emergent finding is the existence of a ‘bureaucratic generation gap’ as an impeding variable to enhanced and more efficient implementation of governance systems. It was found that after the Asian financial crises the Indonesian government (both at national and regional level) drew upon a wider human resources pool to fill government positions – including entrants from academia, the private sector, international institutions, foreign nationals and new graduates. It suggested that this change in human capital within government is at the core of this ‘inter-generational divide.’ This divergence is exemplified, at one extreme, by [older] bureaucrats who have been in-position for long periods of time serving during the extended Soeharto regime. The “new” bureaucrats have only sat in their positions since the end of Asian financial crisis and did not serve during Soeharto’s regime. It is argued that the existence of this generation gap and associated aspects of organisational culture have significantly impeded modernising governance practices across regional Indonesia. This paper examines the experiences of government employees in five Indonesian regions: Solok, Padang, Gorontalo, Bali, and Jakarta. Each regional government is examined using a mixed methodology comprising of on-site observation, document analysis, and iterative semi-structured interviewing. Drawing from the experiences of five regional governments in implementing good governance this paper seeks to better understand the causal contexts of variable implementation governance practices and to suggest enhancements to the development of policies for sustainable inter-generational change in governance practice across regional government settings.

Starter packs : a good start to therapy?

Samples of drugs are often given to doctors by pharmaceutical representatives as part of a marketing strategy. Despite the well described advantages of drug samples, little has been published on the potential adverse outcomes. A series of consumer calls to the Adverse Medicine Events Line has highlighted concerns regarding the quality use of medicines associated with drug samples. The most commonly reported problems were drug samples being supplied to patients with inadequate information regarding dosage, administration, storage and possible adverse effects. In addition, some patients were given excessive quantities of a drug. To reduce such adverse outcomes, the drug industry, health professionals and consumers should be aware of the potential problems associated with starter packs.

When financial incentives do more good than harm : a checklist

Financial incentives can sometimes improve the quality of clinical practice, but they may also be an expensive distraction. Paul Glasziou and colleagues have devised a checklist to help prevent their premature or inappropriate implementation

Simultaneous determination by UPLC-ESI-MS of scoparone, capillarisin, rhein, and emodin in rat urine after oral administration of Yin Chen Hao Tang preparation

A simple, sensitive, and validated method was developed for simultaneous determination of scoparone, capillarisin, rhein, and emodin in rat urine by ultra-performance liquid chromatography/electrospray ionization quadruple time-of-flight mass spectrometry (UPLC-MS). The urinary samples were analyzed on an Acquity UPLC BEH C18 1.7 microm 2.1x50 mm column. Scoparone, capillarisin, rhein, and emodin in rat urine were simultaneously analyzed with good separation. The lower limits of detection were 6.0, 9.0, 7.0, and 3.0 ng/mL, and the lower limits of quantification were 20.0, 33.0, 24.0, and 12.0 ng/mL for scoparone, capillarisin, rhein, and emodin, respectively. The intra- and inter-day precisions (RSD) were less than 9%. The intra- and inter-accuracies were found to be in the range of 94.14-104.54% for scoparone, 101.72-107.34% for capillarisin, 95.24-103.59% for rhein, and 101.32-107.82% for emodin at three concentration levels. The absolute recoveries for scoparone, capillarisin, rhein, and emodin were not less than 77.0%. The developed method has been applied to determine scoparone, capillarisin, rhein, and emodin in rat urine after oral administration of Yin Chen Hao Tang preparation, a traditional Chinese medicine formulation widely used in China for treatment of jaundice and liver disorders.

It takes more than good intentions : institutional and attitudinal impediments to engaging young people in participatory planning

While participatory processes have become an important part of planning, young people are a particularly vulnerable group in terms of potential marginalisation and exclusion from effective participation. Including the views of young people in participatory planning is not simply a matter of bringing them into existing processes. Instead, participatory processes must find ways to integrate and accommodate their needs and ways of expressing their views. Without these adjustments young people may simply move from being kept outside the planning process to a situation where, although they are formally included, their claims are not taken seriously and they are not treated with equal respect. In this paper we reflect on the success of a community advisory committee, formed to consider water planning issues, in integrating the views of young people into their deliberations. Using Iris Marion Young’s (1995) ideas of communicative democracy we highlight the challenges and opportunities presented by this participatory approach, as articulated by both the young people involved and the adult participants. We specifically consider how the elements of greeting, rhetoric and narrative were reflected in the committee process. We argue that both planners and adult participants need to ensure that participatory processes allow for the equal engagement of all participants and place equal value on their contributions. Our research shows that this involves both an institutional and attitudinal commitment to include the views of young people. The institutional commitment requires young people to be included in processes and for their involvement to be supported. However, the attitudinal commitment it is equally important and requires that adult participants be prepared not only to accept the views of younger participants but to actively encourage and support their full participation.

Duty to the court and the administration of justice : some examples, implications and clarifications

No liberal democracy can survive without popular trust in its judicial system. The legal profession and the judiciary enjoy a level of independence and autonomy from the executive that makes them both powerful and privileged. A UNIQUE AND ORGANIC DUTY: So long as the courts are seen to fulfil their duty to guard against encroachments by the executive on the freedoms and rights of individual citizens with integrity and credibility, they maintain enough public support to retain their normative authority. But support for those with power and privilege is easily undermined. It is contingent upon trust. Lawyers who breach that trust in ways that go to the heart of the legal system ought to expect to be made examples of and to suffer severe penalties. The good news is that the sorts of breach discussed here should be neither difficult to anticipate nor to avoid – in theory. In practice, smart and honest lawyers sometimes fall foul of these duties for all sorts of understandable (if not condonable) reasons. Law does not get practised in a social or cultural vacuum. Lawyers are people, and people have weaknesses, failings and stresses...