Professor of Law and Public Administration Estonian Business School
The Area of Responsibility of a Local Government at County Level and Possibilities for the Legal Organisation Thereof
The local government has a significant role in a democratic society - as the main support in the organisation of a democratic method of government and at the same time a connecting point between civil society and the state, the local government is the main guarantee of the stable development of a society. If sufficient protection for the local government has been established in the legal order, it operates in true opposition to the centralisation of authority of the state, as a counterweight. Consequently, the legal bases for the organisation of local government are substantiated in the constitutions of most democratic countries. The legal regulation concerning the underlying principles of the organisation of a local government in the Constitutions of the Republic of Estonia has been consistent, and the associated provisions are contained in the constitutions of the years 1920, 1933, and 1992 (the current document). Therefore it can be said that, regardless of the differences in the theoretical starting points of local government dominating in various stages of the development of the country, the tradition of specifying the bases for the local government's organisation in the Constitution is comparable to the substantiation and regulation of fundamental rights, freedoms, and liabilities. Chapter XIV of the Constitution today gives various guarantees to a local government, which in interaction ensure it, as an independent subject of legal relationships, a fixed position in the organisation of public administration and relations with state administration; create a basis for its independent institutional framework; and guarantee the protection of its subjective legal status1.
However, the public relations of the state and the local government as well as the practice of the legal regulation ensuring it are not free from problems. The determination of the legal status of a local government, the substantiation of its area of responsibility, and the modernisation proceedings from the needs for development are affected by various factors. These may be political, economic, organisational, or legal. All of these factors have an independent effect and scope, but their close interrelations must also be identified. In transition societies, the main factor affecting and directing the public relations of the state and a local government is the political-legal element, which, as a rule, leads to the development of decentralised public relations of the state and the local government. In the conditions of stable democracy, the political-legal factor loses its priority status in the public administration of a state, and the socio-economic element emerges as a stronger factor. The reason for this is mainly the economic relations between various regions of the state, which are becoming closer; the movement of labour both domestically and between countries, accompanying the development of infrastructure; and the rapid urbanisation that has been characteristic of all countries since World War II. As a consequence of the peculiarity of the era and a specific state, the political factor may dominate the substantiation of the public relations of the state and the local government and may do so for a long time, not surrendering its position to the socio-economic element, the typical scope of which is in the conditions of stable democracy. The domination of the political factor is inevitably accompanied by disturbances in the balance of the public relations of the state and the local government, and the local government's possibilities for performing the administrative functions distinctive to it in the organisation of public administration may actually not match the development needs of the society at all.
As a glance back at history often helps to clarify and develop visions of the future, it is instructive to recall that the Estonian people reached independent statehood in 1918 on account of a developed and efficient local government tradition. It is also remarkable that the process of restoration of independent statehood in Estonia that began with the end of the 1980s was started with the restoration of the local government. The Supreme Council that operated in that period passed a series of legal instruments that were called pre-constitutional instruments in later legal theoretical treatments2. The resolution of the Supreme Council of 8 August 1989 concerning the passing of the administrative reform in the Estonian SSR stipulated a transition from the administrative system then in force to a local government administrative system that would comprise the decentralisation of the power of the people to management at local government levels within the republic, clear differentiation of national and local government management, and reorganisation of the territorial administrative structure. The planned reform prescribed the formation of a common and uniform two-level local government taking the historical tradition into account. In this model, the first level is made up of self-governed rural municipalities, boroughs, and towns and the second level of counties - constituting both self-governed and state management - and republican towns in which the functions of the first-level local government are performed at the same time3.
The ideas of the planned administrative reform were implemented by passing laws regulating the legitimisation and organisation of the local government4. The political factor clearly stood out from the factors affecting the passing of the local government reform as the local government that was restored and began operation in 1989 via elections of councils of local government turned out to be a significant judicial power in the process of restoring national independence and performing various functions. The restored two-level local government was, above all, a definite political guarantee in restoring state independence. Here, it may be...