Controlling Abuses of Power

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Occasionally issues emerge that require politicians to rise above politics. Abuse of governmental power by politicians and public servants is one of them. The electorate has every right to expect everyone, irrespective of who they voted for, or what political party they belong to, to reach deep into their conscience and be bipartisan on this matter. The wellbeing of our future generations depends on it.

Politicians and public servants have to be made to realise that public assets are not theirs to dispose of as they see fit. Their election or appointment, as the case may be, puts them in a position of trust to manage public resources for the public interest. The higher up the person in the government hierarchy who betrays that trust, the more severe the consequences of the breech need to be. Abuses of power are quite simply unacceptable.

Irrespective of one’s colours, tendencies or affiliations, we need to unite behind the Prime Minister and support his commitment to identify and chastise those who have abused their power. However, the biggest challenges for the Prime Minister are still to come. They go far beyond identifying and targeting likely suspects. We need an effective legislative and administrative framework to control the way politicians and public servants exercise their powers. Ultimately, the Prime Minister’s ability to implement effective initiatives to controlling government actions and abuses of power lies with good governance.

This article looks at the inadequacies in our political system that have allowed a culture of abuse of governmental authority to flourish. It follows with some proven good governance initiatives that the government might wish to consider implementing.

Political accountability in our parliamentary system

In our parliamentary system, Parliament has the responsibility to ensure that ministers and government officials behave responsibly in exercising their power. Ministers are responsible for the decisions made by public officials in their ministries. These ministers are themselves ultimately accountable to the electorate for those decisions by being answerable to the Parliament. The system implies a requirement for ministers and public servants to use their decision making powers with due diligence. Parliament has the role of ensuring that they do so. But the system is not without its failings. For one, the effectiveness of Parliament in enforcing ministerial responsibility depends on the ability of its members to extract information from ministers and question them. For another, government officials have to serve the elected government and implement its policies that may conflict with their own duty to the public. This can result in government officials being inward focused. It can frustrate their notion that government is a public trust and conflict with their duty to the public. It can diminish the sense of duty that they owe to the public.

The ever growing queue of ex politicians and public servants at the CCID is clear evidence that the system of political accountability alone is not an effective way of controlling abuses of power in our country. It is time for us to look at other forms of accountabilities to enforce responsible government. Paul Hein, in his excellent article in l’express of 1st April 2015 has convincingly put forward the argument that the effective use of whistleblowing can be a very effective means of controlling government action. This article complements Mr Hein’s proposition. It considers two other initiatives that the government could consider introducing to manage abuses of power.

Review of decision making

Any person who has had his legitimate interests affected by an administrative decision should have the right to request an independent review of that decision. The government should consider introducing legislation to ensure that any such person.

Be provided with the decision in writing. Have access to information that the decision maker relied on to make that decision.

Can request the decision maker to provide a reason for the decision.

Have access to any other government information and evidence that will allow him to demonstrate that the decision was not fair, rational or consistent.

Have access to an administrative decisions tribunal before which to put his case for the decision to be reviewed.

The administrative decisions tribunal should be accessible to all. Unlike a Court of law, it should have simple procedures that will allow anyone, especially those who cannot afford the cost of hiring a lawyer, to put his case. The tribunal members do not have to be taken from the judiciary. People who are suitably qualified and/or experienced in government administration should be eligible to be appointed as tribunal members. The tribunal should have power to replace the decision of an official with another one, and that new decision should be binding on the Ministry.

Alternatively, it may choose to refer the matter back to the relevant ministry for the decision to be reviewed. The tribunal should also have the power to refer a matter to the ICAC, the police or the DPP where it has reason to suspect corrupt or criminal conduct.

Freedom of information and the protection of information rights

Anyone, the press in particular, should have access to government information so that abuses of power can be identified and exposed. This will ensure that the government meets its commitments to be transparent with regards to its operations. However, this needs to be carefully balanced with the need to protect the privacy of individuals. Similarly, the government should not be required to disclose any information that genuinely compromises the running of a government.

The challenge is to have a system that is not abused by government officials who routinely withhold information because of the ‘‘national interest”. The solution could be for the system to allow for an official who refuses to release information for national interest reasons to be challenged in a Court of law, with the onus being on the official to prove what government interest is at risk, and how the release of that information can compromise that interest.

The introduction of whistle-blowing legislation together with these two other initiatives should go a long way towards controlling the abuses of power that we so desperately need.

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