An uncertain tomorrow for decentralisation in Moldova. Commentary by Info-Prim Neo

As from March, following publishing in “The Official Monitor of Moldova”, the Law on decentralisation has come into force. According to a number of experts, the law might burry the hopes of a true decentralisation and respectively the creation of an efficient system for the functioning of the local authorities, which was desired during the entire independence period. Authorities in Moldova stumbled many a time so far, making the same mistakes, which stopped the improvement of the local public administration and made the local and international experts criticise it, including the experts of the Council of Europe. It will be left to the judgement of the historians to decide whether these mistakes were so many because of little experience or they were made on purpose. Today, one fact is certain: local public autonomy in Moldova is almost inexistent due to the lack of administrative and financial decentralisation. [Generally accepted European practice and theories] In the countries with democratic traditions, the functioning of the administration system is organised in administration levels which have their own clear responsibilities. The administration of villages, cities, municipalities is responsible only of the services related to the interest of that settlement: pre-school and elementary education, supply with water, transport and local roads, sanitation, cultural and sport events, social assistance, illumination etc. The regional administration is exclusively responsible of public interest services: professional education, regional roads, environmental protection, regional economic development, construction of gas pipelines, intercity transport etc. The central level is responsible of the national interest services: higher education, social assistance, national infrastructure and public security. Working out and respecting these easy rules ensures the well-functioning of the administration system as well as high-quality public services for citizens. Also, in the developed countries, the services are provided depending on the administrative capacity of the authority. If the authorities have the necessary capacity, they come up with the initiative to decentralise the services, so that they would be provided by the administration level which is closer to the citizen. The golden rule of decentralisation says that the transfer of competences comes along with the human resources necessary for providing the service. [...and the Moldovan specific character] Regretfully, in Moldova these rules are not taken into consideration. In fact, none of the three laws on the local public authorities adopted in 1994, 1998 and 2003, outlines clearly the competences of the national public authorities, regional and local. (Even if the fourth amendment of the law on LPA, passed at the end of the last year has irrefutable improvements compared to the previous laws, the situation in the field will not improve namely because of the obstacles fixed via the Law on decentralisation). Each time the competences are “mixed” and doubled so that there is no answer to the question “why do raions and mayoralties have the same competences?” In fact, the scheme was even easier: the competences of the first level authorities were set formally, as these authorities do not know where to take from the financial resources necessary for their accomplishment. In light of this situation, the Moldovan system of public administration is chaotic. The City Halls and raion councils have practically the same competences. The law does not provide the delimitation between the regional and local interest. Local public authorities were given competences for the implementation of which they do not have necessary financial and/or human resources, as well as adequate capacities. Usually, the competences, relations between administration levels and rules related to the transfer of competences from a level to another are set via special laws. Most frequently they are Framework Laws on decentralisation and aim at setting competences for each administration level so that superposition is avoided, as well as the principles, rules and stages which should be respected in the process of transfer of competences and their financial backup. [Road to decentralisation is paved with good intentions] In order to adjust the practices and internal legislative norms to the principles of the European Charter on local autonomy and creation of a working system of local public administration, the Parliament of Moldova passed in late 2006 the Law on administrative decentralisation. The Law was necessary to strengthen local autonomy, obligation stipulated by the EGPRSP, Moldova-EU Action Plan, the Strategy on central public administration reform, and other strategic documents. At the same time, the Law is the final stage of the activity carried out by the Special Parliamentary Committee for strengthening the public administration, budgetary relations and the work out of draft laws on the amendment of the legislation in the field. Although the authors of the present law were inspired by the similar version of the Romanian Law, they changed its essence, making a law on decentralisation, and not a framework-law, without performing a thorough analysis of its impact on the local public administration. That is the reason why the Moldovan version of the law has several deficiencies which will hinder the effective implementation of what the decentralisation should be. [Experts of Business Consulting Institute signal out serious gaps] The experts of Business Consulting Institute (BCI) say that through its content, the law is not reflecting the declared goal. The Law does not provide yet with concrete competences of the first and second level local authorities. The law complicates even more the separation of competences setting 3 types of “activity fields”. The law fixes only several “compulsory activities” for the first level: sanitation, illumination, water, and cemetery. The list is very restrictive and does not stipulate the whole range of services which could be provided by the local authorities. Other competences are optional and can be fulfilled by local authorities only if they have the necessary capacity or through cooperation. It is not clear who carries them out if this capacity is inexistent. Probably, the Government or the raion Council and other structures. The law does not offer any provisions on who deals with the optional competences, the mechanism on the settlement of administrative capacities and which competences will be carried out through cooperation and what is the financing method in this case. The experts of BCI say that this strategy compromises the term of decentralisation and these legal provisions will make the activity of the local public authorities even more chaotic. It would have been more useful if the competences of the first and second level authorities were set concretely, the ones the have to carry out compulsory and which competences are carried out by superior authorities, but can be delegated, being settled the delegation mechanism and the financing of the delegated competence. Although the Law tries to set the principles the transfer of competences will ground on, they are unclearly formulated and allow multiple interpretations. Moreover, the principles included in the law are not always principles. For example, “the principle on ensuring the transfer of competences”, or “the principle on planning and concentrating the financial support”, or “the principle of public-private, public-public, public-civil partnerships” are not principles of decentralisation. Also, the provisions related to the rules of competence transfer are not rules, but mere general provisions that prescribe studies and researches by ministers and the other specialised bodies of central public administration before transferring the competences. […not even implementation mechanisms] The law is not including the implementation mechanism of own provisions. For example, the notion of “administrative capacity” is rather appropriate, taken from other administration systems and its implementation would allow making the first step towards strengthening capacities of local authorities, including financial. But, the term is not complete, limited within a single indicator – the share of administrative expenses. Another example is the provision stipulating that “in case the administrative capacity is not being strengthened, the Government can take the decision to propose the variant of an administrative association with other mayoralties”. But the idea is not developed. The law does not provide for a merger scheme, notions which are developed and applied in the French system of administration. Neither the provisions referring to the role and attributions of the institution for coordination and monitoring of the decentralisation process were completely cleared. The Ministry of Local Public Administration has only the role to “formulate and implement administrative decentralisation policies”. The law should better establish “the work out and control of these policies”, as well as the role of the Ministry in “involving the central and regional authorities in the decentralisation process”. Also, the law is not setting clearly the stages and the actions undertaken in the decentralisation process. The chapter of final and transitory provisions contains only two articles which do not express the content and essence of such provisions. [Compromised perspectives] The experts of BCI say in the end that in order to ensure a gradual and efficient decentralisation process a Framework Law on decentralisation is necessary. It should establish only the principles of these process and the tasks of central authorities in preparing the decentralisation. During the debates on the Law, the experts of the Coalition for fiscal decentralisation, created at the beginning of 2006, repeatedly pointed out the gaps of the draft laws and submitted over 20 proposals on its improvement. Not a single one was accepted. The final version of the Law is not proposing an efficient decentralisation mechanism and is not settling the implementation stages. In light of this situation, a clear strategy with a concrete plan of actions is necessary for the efficient implementation of the decentralisation because the Law only asserts the lack of a future for the decentralisation in Moldova.