"Injustice Anywhere Threatens Justice Everywhere"

Perdana Leadership Foundation and National Council of Professors had jointly organised a Round Table discussion on the Code of Public Governance on 17th February 2011. Emeritus Professor Datuk Dr. Shad Saleem Faruqi delivered his views on the topic, “The Legal Framework for Public Accountability” during the Plano Session.

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THE LEGAL FRAMEWORK FOR PUBLIC ACCOUNTABILITY

Shad Saleem Faruqi

INTRODUCTION

Commentators often distinguish between “responsibility” (by which they mean ethical and normative restraints) and “accountability” (by which they mean answerability to some normative agency). Others distinguish between “control” (which is ex ante, i.e. before a decision is made) and “Accountability” (which is ex post facto i.e. after a decision is taken).

I will avoid debate on these semantic issues. For purpose of this talk I propose the following description:

“Accountability (or Answerability) refers to the liability or obligation attaching to those invested with public powers or duties. Accountability’s primary ingredient is an obligation to explain and justify decision made or actions taken”.

Accountability means having to answer for, or render account of, the way in which one carries out one’s official tasks. The essence of accountability is discharging one’s responsibility at all time in accordance with established ethical norms, values and laws, and being willing to submit oneself to public scrutiny of every aspect of one’s conduct.

When acts of the administration affect individual rights or interests, accountability requires that appropriate compensation be given to the victim of illegal action or maladministration. Here accountability overlaps with the redress of grievances.

Accountability can be individual or collectable, explicit or implicit, positive or negative. It may refer to acts of commission or mission.  It may involve responsibility for powers or for duties.

ENFORCING ACCOUNTABILITY

Controlling the government without crippling it is one of the foremost challenges of constitutional and administrative law. To prevent untrammeled exercise of power, a number of constitutional models, control mechanisms and institutions have been devised which divide and disperse governmental authority and seek to prevent tyranny.

Supreme Constitutions: In most countries the apparatus of control and accountability rests on written and supreme constitution. The Constitution supplies legal and political restraints upon the exercise of all state powers. Fundamental rights, especially free speech and right to assembly and association are guaranteed in democratic constitutions.

Check and balance: In the “check and balance” model of the Constitution of the United States. The executive, the legislature and the judiciary are institutionally separated. The powers of one organ are meant to check and balance the powers of the others.

Responsible Government: In the system of “parliamentary government” in the United Kingdom, the executive is made an integral part of Parliament and is required to be answerable, responsible and accountable to Parliament on day-to-day basis. Answerability to Parliament is enforced through question time, debates, parliamentary committees and service centers run by MPs.

Federal division of power: In federal systems executive, legislative, judicial and fiscal powers are divided and dispersed amongst general and regional governments. The existence and authority of each government is constitutionally safeguarded. Pluralism is given a territorial dimension.

Diarchy: In the diarchical set-up in France and Cyprus there is a division of governmental competence between two or more authorities in the state other than on regional basis so as to  prevent its concentration in the same hands.

Constitutional review: The device of judicial review of legislative and executive action, first asserted by the American Supreme Court in Marbury v Madison 1 Cranch 137, 2l. Ed.60 (1803) enables the superior courts to use the Constitution as a touchstone on which to test every governmental action for its constitutionality.

Ultra vires and natural justice: Besides the principle of constitutionality, the doctrine of ultra vires and the principle of natural justice are also employed by the courts to keep the administration subject to the law.

Ombudsman: The office of the Ombudsman is charged with the responsibility of investigating complaints of maladministration against government authorities.

Other Constitutional agencies: Constitutional or legislative provision for independent Auditor-Generals, Attorny-Generals, Anti-Corruption Agencies and Commissions of Enquiry are some of the other means of calling the government to account.

Electoral process: The electoral process supplies a periodic test of the government’s acceptability to the people it seeks to serve.

Press freedom: Constitutional safeguards for a free media seek to ensure scrutiny of governmental action in the media. Newspapers can supply an informal, expeditions and inexpensive method for airing public grievances.

Participative process: Consultative processes including public participation in the legislative process can serve to restrain executive and legislative exuberance. In some political systems, the devices of Referendum, Plebiscite, Petition and Initiative are available to enable the electorate to assert its whishes in the legislative field.

Extra-legal checks: Such extra-legal checks as groups and even the humble departmental “complaint box” if taken seriously, can help to protect citizens against abuse of power by public officials.

Right to Information: A right to information Act, as in the United State is powerful device for ensuring openness and accountability in government. The counterpart of the Right to Information Act, the official Secrets Act, can be a hindrance to the enforcement of responsibility.

Whistle blowers: In a age of globalization, international standards are developing on such issues as human rights, good governance free elections, corruption, access to government and environmentalism. No nation is free of external scrutiny.

Internal checks: The public services are subject to legal proceeding in the courts. In addition, the bureaucracy has devised many means of internal control. Among them: hierarchy and organizational structures procedures, planning, programming and budgeting, management by the objective, in-service training, job evaluation and internal auditing.

In sum, it is observable in the public sector. But these control mechanisms are not always operating effectively. A wide gap exists between theory and reality and promise and performance. Institutions, principles and procedures do not always work well because a systems is a good as people who administer it.