Vykintas Pugačiauskas, 1998
Eurofaculty research seminar
Introduction
Employment in public service has certain restrictions on the rights of those employed. The extent of these restrictions in Lithuania is defined in several laws such as the Law on Public Officers. In addition, public service employees are expected by their chiefs to follow some patterns of behaviour that are consistent with the general policy of their agency and of the government, i. e. to follow the discipline of the service. However, being equally treated by the Constitution, public employees have the same basic rights as other Lithuania’s citizens. As some recent cases in Lithuania have showed, it is possible that the provisions of Constitution and public service laws as well as orders issued by agencies’ heads may clash on the precise definition of the extent of the entitlement of public service employees to enjoy the same basic rights as other citizens.
This fundamental conflict thus rests upon several keywords such as “freedom of expression”, “criticism” — these rights are guaranteed by the Constitution — and “discipline”, which reflects the specific requirements of public service. They will be more fully discussed below. Now it should be noted that it is difficult, if possible at all, to establish the exact balance between former two and the last one. Therefore it must be admitted that the whole discussion is subject to the influence of value stances, even more so because no theoretical models of dealing with this problem are currently available to the author of this essay. Nevertheless, the balance mentioned above is the central theme of this research project. It will be argued that in some sectors of public policy, and especially among certain types of public service employees, considerations of the “freedom of expression” and “criticism” should be given more weight than in others, in which “discipline” should prevail.
This hypothesis is intended to be supported by comparing and contrasting two empirical cases. One of them is the case of the Chief Doctor of the Alytus region, Jurgis Krasnickas, who was dismissed from office after the largest daily newspaper, Lietuvos rytas, in the beginning of June 1997 published his criticism on the health reform. Another is the decree issued by the Minister of Defence Česlovas Stankevičius which restricted the communication of the officials of the Ministry of Defence and the whole defence system with the press thus restricting their possibilities to criticise defence policy.
After the existing and forthcoming legislation will be briefly reviewed, it will be argued that the limits imposed by laws on such public service employees as medical officials outside the Health Ministry are unjustifiable while considerations of “discipline” should be more strict in the defence system as well as in other sectors that are connected with the national interests of Lithuania — however, basic rights of citizens should nevertheless be ensured in these sectors.
1. Freedom of Expression Versus Internal Discipline
Freedom of expression is one of the fundamental human rights. Other human rights such as rights to form political parties and to assemble to peaceful meetings and others are inconceivable without the right to free self-expression. However, freedom of expression is not only the right of an individual but also the basis of democratic decision making. Being closely connected with the possibility to convey relevant information, freedom of expression enables decision-makers to consider a broader range of options and thus stands in the very heart of the processes of representative democracy. Therefore the right to free expression is guaranteed by the Constitution of the Republic of Lithuania which obligates the state to protect rights of the citizens to seek, obtain, or disseminate information or ideas (Article 25).
Similar provisions are part of international documents that are ratified by Lithuania’s parliament. Article 10 of the European Convention on Human Rights establishes that “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers… The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
Freedom to criticise government institutions or officials and to have the right of appeal is part of freedom of expression. Citizens have constitutional guarantee to freely express their critical opinions and to disseminate critical information about the activities of public institutions. Provision in the Article 33 of the Constitution asserts that “Each citizen shall be guaranteed the right to criticise the work of State institutions and their officers, and to appeal against their decisions. It shall be prohibited to persecute people for criticism”.
However, shifting the attention from the individual level — where the most important guidelines are human rights — to more general, or societal, considerations, one could notice that conflict arises between various requirements of democracy. Freedom of expression serves as a safeguard against the abuse of power. Meaning of the term democracy is usually connected with the accountability of power holders to the general public through elections and other means of checking their power. Freedom of expression is one of such checks and therefore it is one of the most essential conditions of democracy. However, no democracy could be sustained without certain limitations and restrictions, especially on the “activities that infringe other individual rights or the legitimate claims of society“1.
These general considerations have their impact again on individual persons, or, in this case, public employees. While the right to criticise government policies is connected with the principle of accountability and the need for the relative transparency of government decisions, limits are placed in some instances on this right. They stem from special requirements to public service employees to ensure smooth and professional implementation of the decisions taken at the political or senior administrative level (distinction between political and administrative decisions is also relevant in this discussion). Thus public service employees should comply with the requirements set by law and internal discipline to implement these goals.
There are at least four types of obligations of public officials, according to comparative administrative law:
(1) duty to treat employment in the state institution as public service which is fulfilled in accordance with constitutional values and laws;
(2) duty to guarantee that public service is apolitical or neutral;
(3) duty to act impartially, to fulfil the prescribed functions in objective and appropriate manner;
(4) duty to fulfil administrative tasks in professional manner2.
In the democratic states, political neutrality of the public employees is achieved by imposing the following limits: prohibition to follow personal political views considering professional decisions; prohibition to participate in the strikes (Italy, France, Switzerland, Germany), prohibition to participate in the political manifestations (Britain, Italy, Germany), prohibition to declare political attitudes when fulfilling official duties (Britain, Italy, USA, France, Switzerland, Germany). In addition, some other rights are limited, such as right to form societies, or participate in the political parties3.
Several of these limits are imposed by Lithuanian legislation as well. In connection with the freedom of expression, the most important provision was adopted as Part 3 of the Article 20 of the Law on State Employees. “B” level public officials [those appointed by local self-governments and other institutions] may resign if they disagree with the decisions and policies of the Seimas, the President or the Government and if their criticism which was presented through official institutional channels did not bring about any positive results. However they must resign within 14 days if they express their disagreement through mass media or during political events (except election campaigns). If they do not resign they are subject to dismissal from public service according to the laws.
This provision later was declared unconstitutional by the Constitutional Court. The forthcoming Law on State Service has somewhat different provisions. According to Article 46, every public official has right the to free word as well as right to public criticism of policies of the Seimas, the President, the Government and other state or local self-government institutions if loyalty to legitimate authority is maintained. However, as it will be argued below, this provision is insufficient without differentiating various public employees according to the levels of seniority or the sectors of public service.
A second important document establishing distinction between official information and personal attitudes of civil servants is the decision of Government that was adopted on November 26, 1996. This decision on the confirmation of the order of registration and presentation of the official information of state and local government institutions and other budgetary organizations defines official information as reports of state and local government institutions about their position, activities and decisions. Official information is conveyed by the heads of institutions or persons they (authorise) in written or in oral form and with such periodicity as established by the head of the institution (or upon the request of persons or mass media). Evaluation of the activities of the institution presented by the head of the institution in the mass media should be considered equal to official information. Information about the activities of the institution presented by person without such powers is a personal opinion of that person.
2. Criticism or Disagreement: A Case of Jurgis Krasnickas
One of the most recent cases of the conflict between public service discipline and the right of the public official to criticise government policy was the conflict around the dismissal of the Chief Doctor of the Alytus region, Jurgis Krasnickas. After political discussions turned into legal battle, and after legal battle turned into the overview of the law to examine its accordance to the Constitution, this case became also one of the most revealing. The verdict of the Constitutional Court was of special importance to this essay since it interpreted the existing legal framework on the rights and responsibilities of civil servants and draw attention to its shortcomings. Therefore much attention in the following description will be devoted to the ruling of the Court.
Jurgis Krasnickas as the Chief Doctor of the Alytus region was accepted for a job by the Head of Alytus region. This position is qualified as “B” level service and Chief Doctor is indirectly subordinate to the Health Ministry. Upon his enrolment, Krasnickas signed the document that he is acquainted with the provision of the Law on State Employees prohibiting public criticism of the policies of the Seimas, the President and the Government.
The conflict started after daily newspaper Lietuvos rytas on June 4, 1997 published a quarter page-long letter by Krasnickas, who had been a member of the Social democratic list during the parliamentary elections and thus might have been considered by the Conservative-led Health Ministry as a member of the opposition. He criticised both the Health Ministry and minister Juozas Galdikas because, in the words of Krasnickas, they “did absolutely nothing to move the health system reform out of deadlock. [However] they could do this since they had sufficient legal base”4. He dismissed as “absurd” Galdikas’ claims that intended changes in the recently adapted laws would enable payments to all ill persons from the compulsory health insurance fund. Other criticisms included disagreement with the “wish” of Galdikas not to allow competition between private and public health care institutions, and intentions to hand over secondary health care institutions to the self-governments. In general, most of the criticism was directed towards the intentions of the chief officials of the Health Ministry to reform the system in the manner which Krasnickas considered inappropriate.
A week later, minister Galdikas called Krasnickas and asked him to present his arguments before the heads of the Health Ministry. However, he was received only by vice-minister Danutë Kučinskienë. After unpleasant discussion, Krasnickas asked to be received by the minister, but the latter refused Later, Galdikas motivated his refusal presenting argument that official channels of criticism and discussions existed and it was possible to criticise ministry’s policy through participation in official meetings, discussions, sessions of various committees and commissions. He also noted that he and Krasnickas together had participated in at least three consultations so the latter could address him directly. However, Krasnickas replied that such consultations were “empty” and it was impossible to have discussions with the minister since visitors had to wait in the queue for three months to get his audience. The only way to be heard, according to Krasnickas, was to present one’s opinion publicly. Galdikas told Lietuvos rytas that citizens could always present their opinions but “citizens have their own laws, public officials have others”5.
After Krasnickas returned from the ministry, Head of Alytus region proposed his resignation. Krasnickas refused but after 14 days he was dismissed according to Part 26 of Article 20 of the Law on Labour Contract (failure to resign according to the Law on Civil Servants). Disagreement with the policy pursued by the Government and non observance of service ethics were cited as the motives for dismissal.
Jurgis Krasnickas then brought his case to court. He was the first citizen of Lithuania who claimed he was dismissed illegally after he exercised right to free expression. During the court proceedings, Krasnickas insisted he did not criticise Government policy (and was discharging his duties as required by law) and only made critical remarks on those provisions which had not yet been adopted. Furthermore, he had criticised actions and decisions made by single minister, not the Government. Krasnickas claimed he had presented several facts which later were not denied, and some of them even were confirmed by other officials.
Representative of the Chief of Alytus region, Ms Struckaitë claimed Krasnickas had to follow the Law on State Employees and repeated that he was dismissed because of disagreement with the Government policy and non observance of service ethics. She claimed that preparation of the laws and amendments might also be classified as government policy. Still, she failed to enumerate the points on which Krasnickas disagreed with the Government policy and to produce written review on the Government health policy. She also failed to indicate which regulations of service ethics were violated by Krasnickas. (Administration of Alytus region, as it later turned out, had neither official rules of ethics nor the commission on ethics of the service.)
The judge of the Alytus district court on September 9 ruled that the Constitutional Court should decide whether Part 3 of Article 20 of the Law on State Employees corresponded to the Constitution. The court ruled that the provision in this article might violate constitutionally guaranteed rights to have one’s convictions and freely express them (Parts 1 and 2, Article 25) and to criticise the work of State institutions and their officers, and to appeal against their decisions (Part 2, Article 33).
On February 20, 1998, the Constitutional Court held its hearings. While the declarant repeated its conclusions, the representative of the legal entity concerned, i. e. Seimas, Genovaitë Rokickienë, presented some additional arguments against the conclusions of Alytus district court. Every citizen, according to Rokickienë, is in civil relationship with the state. However, after enrolment into the civil service, civil relationship is transformed into administrative relationship. As a public official, person becomes the representative of the state, thus receiving some additional obligations, and among them the obligation of loyalty to the legitimate authority. If the civil servant instead of discharging his duties publicly declares disagreement with the policy of government institutions (the Seimas, the President or the Government), he arbitrarily changes his position from representative of the state into private citizen and de facto re-enters civil relationship with the state. The law allows him to register this change of relationship, i. e. to resign from the civil service. If this is not done, then the obligation to dismiss the official rests with the administration.
Entering the administrative relationship with the state, a person agrees with the restrictions of certain rights in exchange to certain guarantees. However, this does not mean that a civil servant loses his right to criticise public policy. Criticism should be channelled in accordance with the relations of subordination and, in addition, it also might be public as long as it remains criticism and not complete disagreement with public policy. The latter case indicates refusal to retain administrative relationship with the state and should be considered as a basis for resignation.
In its ruling, the Constitutional Court explicated difference between the notions of criticism and disagreement and criticised the provisions of the law which attach the same meaning to both disagreement and criticism. Criticism may be both positive and negative. Positive criticism indicates the wish of the civil servant to participate in the discussion and to find a positive and better solution. While negative public criticism might also be aimed at the positive solution of the problem it is much more harmful to the prestige of state institutions and, in certain circumstances, may mean disagreement with the policies of the Seimas, the President or the Government. The Constitutional Court concluded that disagreement with those policies when the limit of loyalty to the Constitution is transgressed, would be intolerable and in certain cases incompatible with the civil service. Unsurprisingly, the new Law on Civil Service allows criticism within the limits of loyalty to Constitution.
The Constitutional Court noted that demand to limit criticism of more senior institutions could be derived from the principle of subordination. In the democratic states, such demands are included in, and estimated according to, codes of civil service ethics. While this should also be the case in Lithuania (Part 4, Article 14 of the Law on State Employees), ethical rules are still not systematic and incomplete. Thus, according to the Constitutional Court, it was unclear whether criticism should be judged according to the article on civil service ethics or according to the article on the disagreement with the policies of state institutions.
In this connection, the Constitutional Court noted fundamental defect of the latter provision of the law. “Policies of the Seimas, the President and the Government” are all legitimate activities of these institutions, including their decisions and actions. However, if these objects of criticism would be explicated in the law, criticism of any action of these institutions would be punishable. Though it was not clearly stated in the ruling of the Constitutional Court, it seems that the Court held that this was the case, though implicit, with the Law on State Employees. Without clearly explaining what was meant by “policies” and “actions” the legislative body provided for the same consequences without regard which types of actions of State institutions were criticised.
The Constitutional Court furthermore noted some uncertainties in the definitions of “the Seimas, the President and the Government”. Since the Government and the Seimas are collective institutions it is not clear what is meant by their “actions”. However, if individual members of the Seimas and the Government would be included in this provision, it would be considered as tightening of the limitations on the public officials’ civil rights.
Therefore the Constitutional Court concluded that the provision of the Part 3, Article 20 of the Law on Civil Servants obligating them to resign in 14 days after they publicly criticised policies of the Seimas, the Government and the President or otherwise they would be dismissed was incompatible with the Constitution. Only after the ruling of the Constitutional Court was declared, the Alytus district court resumed the civil case of Krasnickas versus Administration of Alytus region and formally returned him to office in the beginning of June.
3. State Secrets or Barricades against Journalists: A Case of the Defence Ministry
While there were some obvious reasons to argue in favour of the right to criticise the health care system, such reasons are far less obvious in the system of defence. Being closely connected with the national interests, and subtle sensitivities of the state, this system is rightfully considered less open to general public. However, a decree issued by the Minister of Defence, Česlovas Stankevičius, raised discussion on whether any criticism is intolerable in the defence system. Later it emerged that this decree might also infringe some constitutionally guaranteed rights.
On April 4, 1997 Minister of Defence issued a decree in which he forbade to present information about Lithuanian armed forces to journalists in “unofficial way”. In the decree, it was specified which officials are authorised to communicate with the journalists. They were: Minister of Defence, his deputies and counsellors, heads of departments, Commander-in-Chief of the armed forces, commanders of military units and those officials which would be authorised by special decree issued by the Minister of Defence. Spokespersons were authorised to disseminate only officially handed information. Minister of Defence in the same decree ordered to organise press conferences twice a month, with their subjects planned in advance.
It was settled that if information were conveyed by a person without such authorisation or in unofficial manner, the presenter of such information would be responsible in accordance with legal acts. No distinction was made between military officials on the field and civil servants in the ministry.
Deputy minister of defence Edmundas Simanaitis explained that this decree was issued after it was noticed that “the armed forces are discredited because of informal communication”. According to him, journalists search for sensations about negative occurrences, and “we want to present the armed forced in another way, so that every evil would be displayed together with the way out of it”. He added that soldiers could complain about difficult situation in their families, however they had no right to complain that wrong machine-guns were purchased (later, Minister Stankevičius emphasised that this comment was not well-turned). If they would be noticed complaining to the journalists and not to their commanders they would be punished in accordance with the regulations. (Later, he admitted that “responsibility” may not necessarily mean punishment6.) According to the spokeswoman of the Ministry of Defence Lolita Zëgerienë, if the source of information would be identified, he or she would be first reprimanded, then his or her rank would be lowered and, finally, would be removed from the service in the defence system. Simanaitis claimed that communication in the armed forces was finally put in good order and dismissed any allegations that this new order might infringe someone’s rights7.
“If something may seem drastic in the decree, said Simanaitis, it is not because it is tried to suppress something but because we have no civil society. Some members of the society speak irresponsibly, have no responsibility for their actions and consequences. I might estimate this as a period of ripening. In the future such limitations perhaps would be unnecessary”8.
According to Simanaitis, this decree was based on the decision of the Government on November 26, 1996.
Another deputy minister, Jonas Kronkaitis, added that the Ministry wanted that journalists got accurate information, not rumours. Being colonel of the United States armed forces in reserve, he used the example of the United States, claiming that press freedom was an important instrument of democracy, but “there must also be military discipline”. In the USA, information available to journalists about the armed forces is regulated by statutes.
After some daily newspapers published critical articles on his decree, Minister Česlovas Stankevičius admitted that dissatisfaction expressed in the press showed that the problem of information was real. However, a month later, he already held that “there is no problem — why it should be created”9. He insisted interpretations of his decree in the press were inaccurate and he did not intend to hide information other than service secrets. Stankevičius also said that his decree would be amended to broaden the range of officials authorised to communicate with the press. He promised that in the future, events in the defence system will be covered by daily communiqués embracing “all aspects of military life”.
Nevertheless, the press was disturbed by promises to cover “all aspects”, not only negative, of the events in the military system. Newspaper Lietuvos rytas termed this situation as “barricades against journalists”. Only after the material was published, Seimas Ombudsman Julius Jasaitis on his own initiative started investigation into the situation with this decree. A month later, he came to the conclusion that some provisions of the decree contradict the Constitution and other documents.
Jasaitis formally drew Minister’s attention to the fact that two sentences in his decree contradicted Article 25 of the Constitution postulating that individuals shall have the right to have their own convictions and freely express them and must not be hindered from disseminating information or ideas. In addition, this decree contradicted Articles 3 and 5 of the Law on Public Information and Article 5 of the decision of Government on November 26, 1996. Seimas Ombudsman suggested that conflicting provisions should be abrogated.
Minister Stankevičius, however, argued that the ministry would not necessarily follow Jasaitis’ recommendations since Seimas Ombudsmen “have no right to interpret the Constitution — where did he take these powers from?” Although he insisted nothing in his decree contradicted the Constitution, he nevertheless passed the decision of the Ombudsman to his deputy to examine it and, if necessary, to amend or to change the original decree.
The decree was later changed. Deputy Minister of Defence Edmundas Simanaitis in the middle of June informed the Ombudsman of the new decree of the Minister of Defence establishing that the previous decree and its subsequent amendments lost their power. The new decree also set out the new rules of the communication with the media and dissemination of official information. The decree defined the term “official information” in the way it included reports of the armed forces, separate units having rights of juridical person and other institutions of the system of defence on their position, activities and taken decisions. Number of persons empowered to convey the official information was enlarged, such officials as the supreme chaplain, chief of the defence staff, military attaches and heads of the services of departments were included. The decree forbade to convey official information in any other way. Persons who violated the existing order or their formal powers would be responsible in accordance with the legal acts.
After making an acquaintance with the changed decree, Seimas Ombudsman did not change his position and addressed the Speaker of the Seimas Vytautas Landsbergis. In his address, Jasaitis called the Chairman’s attention to his conclusion that the last provision in the changed decree contradicts the Constitution. According to Jasaitis, the decree provided for responsibility of unauthorised presentation of the information, that is, for the presentation of personal opinion. In his view, the new decree did not differ from the previous one except in the formulas but not essence.
The question of possibility to convey personal position, central to this essay, arouse once again as a conflict of words between Jasaitis and deputy minister Simanaitis. While Jasaitis held that the decree infringed the right of soldiers and all other persons in the system of defence to express their own opinion10, Simanaitis replied that the changed law drew clear distinctions between official and unofficial information, and it did not forbid to express personal opinion; such opinion would only be considered unofficial. However, there was no mentioning of the “unofficial opinion” in the version of the decree Jasaitis received from the Ministry of Defence, and, in his view, such situation allowed for wide interpretation of what should be understood as unofficial information.
4. Evaluation of the Cases
Existing Lithuanian legislation and Government decisions are ambiguous in determining the rights and responsibilities of civil servants. The Constitution and other acts ratified by the parliament allow criticism and free expression, at the same time setting its limits. However, as the two cases presented show, more concrete definitions are also more vague. There are insufficient or unclear distinctions among various understandings of “official” and “unofficial” information and between “criticism” and “disagreement” as well as there are insufficient distinctions among the rights of civil servants at different levels of seniority.
These differences should be analysed in two different aspects — formal and informal. Formally, the limits on the actions of the civil servants are quite clear. On the one hand, a person employed in the public sector has the right to present his opinion — not only positive but also negative. As the decision of the Government on November 26, 1996 defined, such opinion should be considered unofficial, however, there are no references to any form of punishment or sanctions for the presentation of unofficial position. On the other hand, apart from rather general obligations such as to obey the laws and to keep the state’s or service’s secrets, civil servants were obligated to not express their disagreement with the policy of certain institutions, or, once they expressed their disagreement, to resign in short period of time. Between freedom to express personal opinions as unofficial information and responsibility to adhere to the official policy there are few regulations prescribing or forbidding certain behaviour. In addition, formally, all types of civil servants have the same rights and responsibilities.
However, each of the two cases was connected precisely with the attempts to impose additional regulations. In Jurgis Krasnickas case, the law was interpreted in such a manner that the meaning of “disagreement” was unduly expanded. In the case of the Ministry of Defence, the scope of legitimate expression of opinions was unduly decreased. Both attempts were recognised as unconstitutional.
While the need to regulate public service behaviour remained, failure to impose additional limits increased the necessity of internal regulations. There are no established ethics codes or they are incomplete, or they contradict the constitutionally guaranteed rights. In addition, existing rules for internal communication and subordination do not ensure efficient communication and the criticism may be “lost” unnoticed.
This brings the focus of this discussion from formal regulations of criticism of public service by those employed in it to less formal aspects of criticism. At least three main points for discussion should be distinguished. Firstly, the definitions of the object of criticism, secondly, differences of various sectors of public service and differences in the levels of seniority, and, thirdly, effects of internal arrangements of various public service institutions should be discussed.
4.1. Decisions and Policies: What Could (Not) Be Criticised
As the two cases show, there is still a lack of clarity in what could, and what could not, be criticised, and to what extent. Distinctions between policy, intentions and decisions as well as between political and administrative decisions should be made.
As the case of Krasnickas showed, there are no clear definitions of what is meant by “policy”, “decisions” and “intentions”. There is a dangerous trend to view all actions connected with public policy, especially intentions, decisions and implementation as being equally important. Therefore even criticism of auxiliary decisions (“wrong machine-guns”) and actions not connected with the substance of policy might be regarded as having the same consequences as the criticism which strikes at the heart of the public policy.
Of all these actions perhaps the most dangerous, though theoretically feasible, is the equation of intentions and preparation of the decisions to the policy itself. As the case of Krasnickas showed, in the conditions where there are no clear rules of what could be criticised even the criticism of yet undecided issues might be considered as harmful or even as the basis for resignation.
Distinction between political and administrative decisions and policies is very important in this discussion. Criticism of political and administrative decisions brings about different effects. While those making administrative decisions should be more attentive to professional, or substantive, criticism, any politically-based criticism would be irrelevant. However, the reverse was the case in the conflict of Krasnickas and Galdikas. Professional criticism was rejected, first through internal institutional channels, then through considering this criticism as political (Krasnickas belongs to the opposition party). Somewhat similar situation was with the Ministry of Defence where both professional and political criticism was dismissed as impermissible.
Civil servants, having substantial professional knowledge, might fruitfully criticise administrative decisions and contribute to the improvement of public policies — but this criticism should be presented according to internal institutional regulations. Still this does not mean that criticism of political decisions should be “out of reach” of civil servants. At the level of political decisions, criticism by the civil servants is perhaps equally possible as that of other citizens (with the exceptions briefly discussed below) as long as they remain loyal to the Constitution and service norms. Precisely this condition singles out some sectors of public service where criticism by civil servants of political decisions almost automatically would raise doubts about their loyalty. Defence system is perhaps the best example. Criticism of priorities of security and national interests might be rightfully considered as indicator of possibly dangerous dissent, but the two cases discussed show somewhat paradoxical situation. While the considerations that criticism by the civil servants of political decisions is impermissible governed the conflict with Krasnickas (who only expressed criticism, not disagreement), the decree by the Minister of Defence was in principle aimed at eradicating criticism of administrative decisions. (In a sense, it might be considered as an attempt to evade criticism at the political level, but not by civil servants — rather by opposition parties, mass media and general public.) Therefore it might be concluded that in both cases the interpretations of criticism were erroneous.
4.2. Differences among Civil Servants: Who Could (Not) Criticise
It was already noted in the preceding discussion on different effects of criticism of political and administrative decisions that limits on criticism should be placed in accordance with the sensitivity of the sector of public policy. The examples in this essay are taken from two quite different spheres in order to emphasize such differences.
While the Constitution established legal equality of all citizens and gave them equal rights to express their opinion, the responsibilities demanded from various public officials differ. Depending on the sector of public service, the requirement of loyalty to the Constitution might mean much or little. In some sectors of public policy, such as defence or security, higher standards of compliance and discipline — meaning lesser possibilities to criticise — seem inevitable since non-compliance might stand for disloyalty to state interests. At the same time, civil servants in other sectors could be given wider rights to criticise public policies if only because these policies would be improved from the feedback of experts with field knowledge.
Practical cases show that such considerations were not very popular among legislators. Neither the existing Law on Civil Servants nor the forthcoming Law on Civil Service do not differentiate between former and latter types of civil servants. Both implicitly recognise the existence of theoretical equality of the citizens, but fail to recognise practical differences of requirements and responsibilities. Thus the right to impose tougher limitations on freedom of expression is transferred to the level of government, or, more realistically, to the discretion of ministries and their heads. At this level, it is more possible to have regulations issued when the need to silence political or other opponents arises. It can be argued that the decree of the Minister of Defence might fall under the latter category. Arguments that it was natural to have such decree in the defence system which was quite closed seem to be untenable, because the threats to national security arise not from any criticism but perhaps more from the criticism of political orientations and from the presentation of facts connected with the state secrets. However, relations connected with the state secrets are sufficiently regulated by a separate law.
Apart from the problem of different sectors, additional problem of different ranks, or different levels of seniority, exists. It is connected with the distinction between political and administrative decisions but goes deeper as the hierarchy is more complex than the binomial model of “A” and “B” levels of civil service. Public officials holding non-political positions should nevertheless be classified into civil servants that participate in the initiation of the policy or decisions and have their say in the shaping of such policy. Usually, these are ministerial-level civil servants. Another group of officials participate in the policy formation only indirectly, and are more involved in day-to-day implementation of decisions made at the upper levels. Differences between these groups are internal differences among “B” level civil servants. The right to criticise public policy might be legitimately limited in the former group, since it would be considered as undue — and unethical — politicising of technical matters. It could reduce the efficiency of the policy-preparing process and even threaten its effectiveness. Criticism expressed by the civil servants in the latter group would not seem to hinder the formulation of policy.
The two cases showed that such distinctions were not made. Krasnickas was dismissed although he worked in a regional institution of health care, not in the ministry, and was not directly responsible for health policy formulation. The decree of Česlovas Stankevičius also did not establish different treatment of the officials in the ministry, whose criticism would be rather detrimental, and soldiers on the field.
4.3. Internal Regulations: How to Criticise
The last point of the discussion concerns the question of established mechanisms of criticism. While in some sectors of public policy it is possible to develop sophisticated mechanisms allowing for criticism, in others such possibility seems rather doubtful. Internal regulations or morale of the organisation might discourage expressions of criticism — or, vice versa, as the Krasnickas’ case revealed, might encourage civil servants to look for other ways, including mass media, to express their criticism.
The Constitutional Court in its decision noted the lack of norms of service ethics regulating expression of criticism in the public sector. In addition, it might be argued that internal regulations of the public service are inefficient with regard to freedom of expression. The principle of subordination implies that criticism should be presented to immediate superior and then further up the hierarchy. Practically, it seems that upper-level officials, at least in the cases discussed, would not be favourable to criticism from below. While there are formal means to convey personal criticism, they are not working in practice. The claim by Krasnickas that his discussions with the minister were “empty” seems to be symptomatic. Such situation encourages politicising one’s arguments and resorting to mass media as a supposedly more powerful — but also more harmful — instrument of criticism. Therefore one of the tasks of administrative reform should be to develop efficient mechanisms of criticism.
In the sector of defence, however, this would seem more complicated because of peculiarities of military discipline. Still, as the case of the Ministry of Defence has shown, some regulations might be improved to allow for wider communication of the officials with the press without doing much harm to the requirements of the defence system. Such reforms might include liberalisation of the press conferences and removal of excessive, even if more informal, limits to present personal opinion.
Conclusions
The cases of Jurgis Krasnickas and the Ministry of Defence, as well as brief overview of existing and forthcoming legislation, show that there is a considerable vagueness in both legal and practical spheres in connection with the rights of civil servants to express their personal opinions and criticism. Only very general limits are clear: on one hand, freedom to criticise public policy (expressing personal opinion), and, on the other, obligation to retain loyalty to the Constitution.
More concrete regulations are at the same time more obscure — or more doubtful. There is little agreement of what is public policy (and thus what might be criticised), who should be allowed what level of dissent and how criticism should be channelled to avoid maximum harm. The forthcoming Law on Civil Service fails to answer most of such questions. It seems that without introduction of concrete definitions of offences or faults as well as sanctions for them any system of levels of civil servants would not achieve full and appropriate regulation of the questions discussed in this essay.
Notes
1 McQuail D. Mass Communication Theory: An Introduction.— 3rd ed.— London, 1997,— P. 129.
2 See Ruling of the Constitutional Court of the Republic of Lithuania on the Correspondence of the Article 20, Part 3, of the Law on State Employees to the Constitution of the Republic of Lithuania.
3 Ibid.
4 Krasnickas J. Sveikatos apsaugos reforma gráţo á diskusijř lygá // Lietuvos rytas.— 1997.— June 4.— P. 4.
5 Tređčina A. Gydytojo nuomonës kaina — raginimas palikti postŕ // Lietuvos rytas.— 1997.— June 13.— P. 3.
6 Gudavičiűtë D. Barikados prieđ ţurnalistus tebëra: Seimo kontrolierius abejoja ministro ásakymu // Lietuvos rytas.— 1997.— June 17.
7 Ribojama informacija apie kariuomenć / BNS.— Lietuvos rytas.— 1997.— April 9.— P. 3.
8 Gudavičiűtë D. Lietuvos kariuomenëje — barikados prieđ ţurnalistus // Lietuvos rytas.— 1997.— April 17.— P. 3.
9 Gudavičiűtë D. Seimo kontrolierius ministrui pasiűlë keisti ásakymŕ // Lietuvos rytas.— 1997.— May 23.— P. 3.
10 He event told, “In my opinion, this decree is an attempt to have [the ministry] enclosed in wooden fence so that no one could see anything at all”. Gudavičiűtë D. Barikados prieđ ţurnalistus tebëra…
References
Gudavičiűtë D. Barikados prieđ ţurnalistus tebëra: Seimo kontrolierius abejoja ministro ásakymu // Lietuvos rytas.— 1997.— June 17.
Gudavičiűtë D. Lietuvos kariuomenëje — barikados prieđ ţurnalistus // Lietuvos rytas.— 1997.— April 17.— P. 1, 3.
Gudavičiűtë D. Seimo kontrolierius ministrui pasiűlë keisti ásakymŕ // Lietuvos rytas.— 1997.— May 23.— P. 3.
Krasnickas J. Sveikatos apsaugos reforma gráţo á diskusijř lygá // Lietuvos rytas.— 1997.— June 4.— P. 4.
McQuail D. Mass Communication Theory: An Introduction.— 3rd ed.— London, 1997.— xv, 416 p.
Ribojama informacija apie kariuomenć / BNS // Lietuvos rytas.— 1997.— April 9.— P. 3.
Tređčina A. Gydytojo nuomonës kaina — raginimas palikti postŕ // Lietuvos rytas.— 1997.— June 13.— P. 1, 3.
Various documents retrieved through the internet search engines http://www.lrytas.lt/paieska/paieska1.html and http://www.lrs.lt/DPaieska.html.
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