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Taxpayer-funded largesse: food for thought

15 septembre 2016, 17:00

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There is food for thought in Mr. Sivaramen’s editorial, dated August 12, 2016, “It is their time to eat (Part II)’. His long list of public scandals that have grabbed the headlines would give any one pause, except, of course, those who profit from scandals involving taxpayer-funded largesse – whether as consumers or as distributors of largesse.

Consumers vs Distributors

As troubling as the scandals themselves, are the reactions of those directly involved - consumers and distributors alike. Seemingly oblivious to the existence of universal norms of fairness and transparency for the selection of personnel, one member of the class of distributors of taxpayer-funded largesse gravely announced that the time had come to revisit the manner of appointment of officials. By contrast, the reactions of the consumers ranged from muted to “too clever by half”. One of them bragged about his ability to achieve in one day what other presumably less talented members of society would take 150 years to achieve. All appear suitably imbued with a sense of their own importance.

From the point of view of an independent observer, there are few better ways to feel the pulse of a population than to ride in a taxicab or read online commentaries of newspaper readers on matters of common interest. The unsolicited chitchat of cab drivers are a rich and unfiltered source of wisdom on the state of a nation that lofty discourses of urban élites would find hard to match. So too are the freewheeling commentaries of online newspaper readers. Those who commented on Mr. Sivaramen’s editorial were uniformly resentful about the dilapidation of taxpayer funds, which scandals invariably represent; but whilst many focus their anger on the consumers of taxpayer-funded largesse, others prefer to target the distributors.

Across Africa, as in much of the developing world, politicians and their band of followers and flatterers bear the brunt of popular anger about scandals involving taxpayer-funded largesse. But politicians and their sidekicks are not the only ones to blame. From an electorate which shows up religiously to every election season to vote for one flawed party after another, to reporters who fail to exhibit the judgment, honesty and objectivity expected of a would-be fourth pillar of the government, to pampered bureaucrats who use their taxpayer-funded platforms to harass, berate and shake down those they perceive as being insufficiently subservient to their political masters, to judges who resort to imaginative arguments in order to give the executive a pass, there is more than enough blame to go round. It may be comforting to pass blame around or toss it up the value chain; but there are few segments of society who are totally blameless.

Judicial Independence

In the aftermath of an unprecedented series of terrorist attacks in France, many French municipalities approved a ban on the so-called burkini, a model of swimsuit for women designed to cover the entire body except the face, hands and feet. The town of Villeneuve-Loubet in the Côte d’Azur was one of some 30 municipalities that approved the ban. The ban was in response to heightened risks of terrorism. But whilst it was supported by politicians on both sides of the aisle, human rights organizations complained that it amounted to an unjustified infringement of human rights. The Conseil d’Etat (CdE) agreed and overruled the decision of the administrative tribunal of Nice to uphold the ban, adding that such a ban could only be justified on the basis of a clear and demonstrated risk to public order.

The CdE’s decision must have come as a surprise to those who are more familiar with the theory of judicial independence than with its practical application. The CdE could have deferred to the executive on an issue pertaining to national security, but it chose to substitute its own judgment for that of the executive as to whether the proposed measure was proportional to the perceived risk. The exercise of judicial independence requires a rare combination of competence, moral strength and rectitude, and integrity. France is one of a handful of countries with a proud tradition of judicial independence derived from the doctrine of separation of powers, which allows the judiciary to discharge its functions without fear or favor.

Checks and balances

Judicial independence is an essential component of the system of checks and balances without which no democratic regime can survive; but it is not the only one. When politicians veer off course, courts can be expected to be on hand to restore normalcy. Parliament is mandated to exercise its oversight authority over actions of the executive to make sure that they are consistent with applicable laws and policies. Handsomely remunerated bureaucrats representing the permanent arm of the establishment are charged with a mandate to serve citizens and insulate them from the daily grind of partisan politics without engaging in acts of harassment or retribution. The press also has a key role to play in keeping public officials honest, but they can only do so if they are honest, objective and non-partisan.

When politicians are out of control and Parliament rubberstamps their actions, when the establishment panders to their whims and caprices, and courts look the other way, when the press is unable to speak with one voice, the system of checks and balances crumbles, the public becomes disillusioned with politics as usual and one breed of failed politicians makes way for another breed of untested politicians. In Europe, they turn to one political wild card after another; in the U.S. they have their own Trump card; in Britain they vote with their feet with Brexit; in the Philippines, they have a president to kill for, and he reportedly advocates the extrajudicial killing of suspected drug dealers.

«Allons-nous subir ou réagir? »

The editorial concludes with an important question as to whether people should just suffer or react, but without speculating on how they can or should react, should they be minded to do so. The classic response to a scandal-ridden country environment is through the ballot box, which allows the electorate to use each electoral cycle to oust those who have fallen short or betrayed the people’s trust. But elections are subject to the electoral cycle, and, more often than not, the menu of options that they offer are the two sides of the same coin, with voters having to settle for the lesser of two evils. In a country in which one regime after another has presided over an unprecedented outbreak of scandals, it is difficult to imagine how one more election can be counted upon to break the vicious cycle of scandals and mismanagement and more scandals. There has to be a better way.

Judicial Review

Scandals are invariably the product of one or more dubious administration actions. Short of an electoral solution, there is also a judicial avenue open to challenge the administrative action at the root of the scandal, and that is by way of judicial review. Judicial review is an important instrument which enables the citizenry to challenge the lawfulness of decisions made by public bodies and others exercising public functions. It has a key role to play in any common law jurisdiction, but only if an applicant is given a fair opportunity to challenge the legality or otherwise of the impugned administrative decision. Anecdotal evidence would suggest that in Mauritius successful applications for judicial review are few and far between.

Without hard statistical evidence of the number of applications for judicial review filed or the percentage thereof that are denied, it is premature to suggest that such applications are “dead on arrival”. Nonetheless, a sluggish success rate of applications for judicial review is hard to reconcile with an exponential growth in the number of public scandals. There are three possible hypotheses that could account for any mismatch between the success rate of applications for judicial review and the proliferation of scandals involving public funds:

  1. There is no administrative decision associated with any of the scandals, or, if there is, the decision is unimpeachable. Such an unimpeachable decision would be the legal equivalent of the medical procedure about which it can be said that “the operation was a success but the patient died”.
  2. There is indeed an administrative decision involved and it is illegal or otherwise contrary to administrative norms, but the applicant fails to meet the high bar set by the courts for the grant of the application. The tendency of courts to be overly rigid and mechanical in their approach to jurisdictional issues and objections has been commented upon extensively by none other than the Privy Council.
  3. No matter how compelling the applicant’s case, courts are disinclined to find against the executive branch or grant applications likely to cause embarrassment. In Africa, as in the rest of the developing world, there are countless reasons why courts give the executive branch a free pass, not least of which is the fact that the executive pays the bills and does not take kindly to being called to account by judges.   

Many jurisdictions have on hand statistical evidence of the track record of success (or otherwise) of judicial review applications, showing the overall number of applications filed, the percentage rate of applications granted and, in the case of applications denied, the percentage of applications denied on procedural grounds and on the merits, respectively. Such statistics are useful not just to measure the impact and relevance of judicial review as an instrument to combat illegal administrative actions driving public scandals but also to inform reform measures deemed necessary or appropriate. There is no evidence that such statistical evidence is readily available in Mauritius. Statistics may well hold the key to the role that judicial review may have in an effort to contain the proliferation of corruption scandals, and, going forward, lawyers, researchers, journalists and others may well find it well worth their while to collect, compile and analyze them.

The Good, the bad and the bureaucrats

Another potential weak link in the system of checks and balances is a civil service bureaucracy that has yet to transition to the 21st century. Poor training is a factor, but there is more: whether out of loyalty to the government or just a desire to please political masters, public officials often lose sight of the fact that, as public servants paid out of public funds, they owe a duty of care and respect to the public without any concomitant right to harass, berate or shake down.

There are undoubtedly good and honest civil servants who operate under the radar, and there have certainly been changes for the better to report – both technological and otherwise. A prime example, is the immigration service in the arrivals lounge at the airport, which has undergone a much welcome facelift. Gone are the days when showing a hotel address as your address in Mauritius would prompt the immigration officer to inquire whether you are a hotel worker. Nonetheless, government departments’ dealings with the public continue to be mired in the fog of the bureaucracy, with a client satisfaction rate ranging invariably from mediocre to “could do better”.  

Tenants in service

In Africa as in the rest of the world, public officials, whether lawyers, judges, elected officials or civil service bureaucrats, would do well to remind themselves that they are only tenants in public service liable to early release at a moment’s notice. The notion of tenancy-for-life was tried and tested by a handful of infamous would-be presidents for life, but never seemed to gain much traction. A tenancy in public service is not a birthright or a given but a privilege and an opportunity to do the right thing and make a difference. Humility is the order of the day, and a healthy dose of honesty and integrity, with a sprinkle of human compassion added, are essential ingredients.

Unintended Consequences

It is no secret that there are laws that are promulgated and decisions taken more out of spite or bitterness, or to target particular individuals or groups of individuals, than to promote the public good or address overriding social concerns. It is not uncommon for unjust laws to come back to haunt those who sponsored them and their families without any measurable impact on their intended targets; nor is it unheard of for precedents generated by foolish or misguided decisions – whether judicial or administrative - to come back to bite the hand that produced them. History is replete with examples of the so-called high and mighty who were so consumed with hatred and desire for retribution that they ended up losing sight of their mission objectives, misfiring on all fronts, never able to generate the energy to do more than galvanize their perceived adversaries, real or imaginary.

Paradise delayed

There is still time for Mauritius to lay claim to its status as a paradise island but there is work to do. Many segments of society may well be within striking distance of paradise. The urban elites who have been blessed with a taste of earthly pleasures may have an arguable case that they already are on a path to paradise. Tourists who get whisked away from the airport to the beaches and back again to the airport without having to venture into the realm of officialdom - courtesy of an unavoidable police report or unwanted court appearance - come away with their own glimpses of paradise. But paradise cannot be the exclusive preserve of the rich and famous. Only when the huddled masses can have their own shot at a foretaste of paradise - without having to worry about arbitrary laws or self-serving decisions - can the dream of lifelong happiness materialize in the form of paradise.