1.2 - J. Legal aspects of e-government

Mr. Roland Amoussou-Guenou, Regional Expert on Legal Cooperation in the Association of Southeast Asian Nations (ASEAN), Embassy of France in Thailand, gave a presentation on the legal aspects of e-government. He said the potential for e-government to modernize, transform and improve States' management was widely acknowledged but it was also a vast and ambitious challenge.

He drew attention to the similarities between e-commerce and egovernment. Both used Internet-based technology for the benefit of the information society. According to some schools of thought, e-government was a form of e-commerce where the "service provider" was a Government, and the "clients" were the citizens and the private operators. However, he warned that the parallel should not be carried too far and the two were, ultimately, fundamentally different. e-commerce was business driven, while e-government was, or should be, citizen- or people-centred. The basic idea of "public service" or "public administration" was central to e-government. Further, there was already a plethora of norms and legal instruments at the international, regional and national levels that regulated e-commerce, while e-government legal frameworks per se were still in their infancy. E-commerce had reached a critical mass¹ as opposed to e-government which was still in the starting blocks.²

E-government had emerged as an important challenge for the information society. As a tool to achieve better government, e-government offered potential solutions to leaders to better assume their responsibilities and also:

1. Helped achieve specific policy outcomes (stakeholders could share information and ideas and contribute to specific policy outcomes, such as educational or training programmes, information sharing in the health sector, patient care);
2. Could contribute to economic policy objectives (reduction of corruption, increased openness and trust in government, reduced government spending);
3. Could be a major contributor to reforms; and
4. Helped trust-building between governments and citizens.

However, the challenges faced by e-government could be summed up as information infrastructure, efficiency, quality of service, citizen participation, governance and public administration.

It was not easy to define e-government because of its multidimensional aspects. Many organizations such as the World Bank, ADB and the OECD had attempted to define it and there were many different approaches. Some referred to the functions of e-government by underlying the governance aspects ("functional" definition), others presented e-government through its different processes ("descriptive" definition), a few propositions tried to capture its essence ("conceptual" definition), others attempted to define egovernment by reference to e-commerce (definition by reference) and still others combined all of those elements together ("complex" definition). The main concept behind those definitions, however, was that e-government was more about "government" than about "e".

Identifying its legal aspects, therefore, required an understanding of "Government". Government could be defined as a series of acts of authoritative and administrative nature performed by the State, State-entities or administrations and which were interrelated with other administrations and affected a citizen's life. Government was also about governance.³ It was the process by which power was exercised or shared by a public authority in a country.

E-government made it possible to establish a more open, inclusive and productive public sector, in line with good governance. In the sense of egovernment, good governance could be achieved by the proper combination of information and communication technologies, organizational innovation and improved skills.⁴ To that end, many legal obstacles needed to be overcome. The three main categories of legal issues were e-government legal validity, egovernment trust and confidence, and remedies available in e-government.

E-government implied dematerialization by electronic medium, open network communication and migration of paper-based documents to electronic documents in government activities. Examples of legal validity issues were law enforcement and the establishment of rights and titles. The first step in the process was the adoption of laws recognizing the legal validity of egovernment acts. ASEAN countries such as, in order of interest, Singapore, Thailand, Brunei Darussalam, Malaysia and the Philippines resolved the problem of the legal validity of e-government acts in their current e-commerce or e-transaction acts. There was a similarity in the drafting of the different provisions between the countries.

It was not enough to declare the legal validity of e-government acts. Trust and public service must be secured in providing public services. Those requirements consisted of protection of personal data, authentification, identity management, privacy and data protection, network and information security and the fight against cybercrime. Most of those issues were already covered in provisions made to current laws and regulations in Asia and the Pacific.

International and regional conventions on human rights as well as national constitutions placed an obligation to Governments to their citizens, access to State justice and to effective remedies. There were many initiatives worldwide to set up online dispute resolution mechanisms, but the decisions might not be enforceable like a judgment or binding like an arbitral award. In spite of provisions on the legal validity of e-government acts, no current ecommerce laws provided for an "e-State justice scheme". That was why adjudicative as well as non-adjudicative systems needed to be made available.

Mr. Amoussou-Guenou presented the French experience in implementing e-government as a case study, to illustrate the achievement of the European Union Member States according to the European Regional Strategies and Plan of Action. According to the latest global survey conducted by the United Nations,⁵ France was ranked seventh among e-administration effective countries worldwide. In the previous e-readiness survey (2003), France was ranked at 19.⁶ France's successful implementation of e-government was a good example of compliance by an individual country with a regional political initiative supported by a visionary plan of action. The French legal framework for e-administration was both general and specific, and monitored and managed by dedicated administrative bodies. The experience of the French he said, showed, that the most important lesson learned was that in addition to a strong political will, the legal and regulatory frameworks as well as dedicated institutions were necessary elements for a successful e-government strategy.

There was an international consensus that e-government had become an important challenge for the information society. According to numerous studies, surveys and research, e-government offered potential solutions to leaders to better assume their responsibilities by providing efficiency, quality of services, citizen participation, good governance and enhanced public administration. The most important lesson learned was that in addition to a strong political will, the legal and regulatory frameworks as well as dedicated institutions were necessary elements for a successful e-government strategy. The implementation chart (Figure 12 [PDF 62KB | 1 page]) provides an overview of the different key aspects of implementing e-government.

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