Are we about to witness the end of the systemic bias defense?

A phenomenon known as „systemic bias of administration”, which has long been the subject of discussions, is headed for a solution: a proposed amendment to the Administrative Code wants to abolish the possibility to invoke the defense of systemic bias, with the goal to make the decision-making process of administrative authorities faster and more efficient.

At the beginning of March, a draft amendment bill submitted by the regional government of Pardubice passed the hurdle of a first reading in the house of deputies of Czech parliament. This bill envisions that it will no longer be possible to invoke the defense of bias on the part of officials due to their public-service or employment relationship with the state or with the relevant unit of self-government; in effect, this would be tantamount to abolishing the defense of (what is known as) systemic bias of the administration altogether.

Systemic bias of the administration describes a situation in which all officials of the relevant body of public administration (including the heads and executives) must recuse themselves from making a the decision in a particular matter, as they are public servants or employees of a governing administrative authority (i.e., as a rule, the municipality or the regional government) whose interest in the outcome of the administrative procedure is pressing to such a degree as to trigger a real risk that extralegal aspects may influence the position taken by said officials. The archetypical example for systemic bias are the building offices, where officials employed by the municipality often decide (due to the delegation of tasks and competencies vested in the government) on building projects in which their employer may take a specific interest. At the same time, the employer – i.e., the municipality – is often directly involved in the building permission proceedings as a participant. Because of this, the official in charge at the building office may potentially be unable to hand down an unbiased decision because of their dependency on their employer.

The draft bill discussed in this article primarily responds to the decision-making practice of the Supreme Administrative Court. While it is true that the SAC has stopped short of endorsing the automatic exclusion of officials from such matters, it does postulate that „systemic bias” as such exists. This sets a relatively low bar for suspecting officials of bias and excluding them from the decision in certain matters: the risk of systemic bias is in and by itself a call for increased circumspection and doubt when reviewing the arguments for excluding an official from proceedings. According to the SAC, statements by politicians or in the media which precede or accompany a given administrative procedure and which suggest that influential players take an interest in the outcome of such procedure may qualify as a factor of suspicion. In practice, this kind of decision-making practice by the courts has led to the current state of affairs in which the participants to administrative proceedings frequently challenge officials by pointing to „systemic bias”.

Against this backdrop, the amendment bill seeks to narrow the grounds on which officials may be declared to be biased. It would then no longer be possible to invoke the fact that the given official is a public servant or is employed by the region or municipality. Ultimately, the goal is to drastically reduce the volume of objections brought in administrative proceedings and thus to help the administrative authorities decide in a more efficient manner. Current practice shows that administrative proceedings are sometimes all but paralyzed due to the abuse of the objection of systemic bias. In other words, the situation certainly calls for an urgent solution.

However, the professional community harbors a lot of doubt whether the proposed solution is adequate: instead of an in-depth treatment of the risks inherent in the issue of systemic bias, the proposal simply changes the law such that systemic bias can no longer be invoked. Consequently, a discussion has flared up about the likely view to be taken by the courts, and in particular by the Constitutional Court which may well find the current proposal to be unconstitutional. Detractors of the amendment bill believe that a more suitable solution would be for the state, rather than the regions, to step in and, with respect to the building offices in particular, establish a separate system within which the building offices are in no way connected to, or dependent upon, the self-governing unit (whether in terms of personnel or otherwise), fully reflecting the transfer of government competencies and powers, modeled upon the current arrangement e.g. of the fiscal and customs administration.


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