Good governance - where did we go wrong?

- To quote Kautilya: "Subjects when impoverished become greedy, when greedy they become disaffected; when disaffected, they either go over to the enemy or themselves kill the master." He stressed the need to avoid having a king who would not be just. Image: Prime Minister Ramasinghe Premadasa attends a rally December 2, 1989 in Galle, Sri Lanka. Violence continues daily as the JVP, a Buddhist-Sinhalese Nationalist Marxist organization, the DJV and other militant groups fight for the removal of Indian peace keeping force in the cities of Sri Lanka and attempt to overthrow the government.

by R. M. B. Senanayake

(March 31, Colombo, Sri Lanka Guardian) What is good governance? It is a value-loaded term. But when theorists of public administration discuss administration, they prefer to talk of efficiency rather than good governance. Efficiency is an economic and an accounting concept and refers to minimizing the use of resources per unit of output, the resources referred to being mainly manpower, capital and materials. Governance is also concerned with getting things done to accomplish certain objectives.

The objectives are concerned with the public good - the welfare of the people. If politicians and their bureaucratic accomplices seek merely to pursue their own interests as the Public Choice theorists have argued they do, then there must be countervailing forces in society which will direct them to the correct path - the pursuit of the public interest or the public good rather than the private interests of the rulers and the bureaucrats. How to do this is the prime problem of governance.

This problem was foreseen even by Kautilya who stressed the need for the ruler to be proficient in the knowledge of the ‘sciences’ as well as training in the control of the senses. Competency in the ‘sciences’ will not give control over the senses; it is possible that the king has both, neither or only one of the two. There is the question of preference between one who is good but has no competence and one who has competence but is not good. One would then fail to get a ruler who will uphold the ‘dharma.’

Checks and balances

Thomas Jefferson, one of the Founding Fathers of the American Constitution wrote about democracy. American democracy profited more from the thinking of Alexander Hamilton than from the democratic sentiments of Thomas Jefferson. If men were angels, no government would be necessary while if angels governed men, there would be no need for checks and balances. But men are not angels and angels do not govern men. According to the bible, all human beings are sinners and prone to selfishness; and power tends to corrupt and absolute power to corrupt absolutely according to Lord Acton. So checks and balances are essential institutional features for good governance whether the ruler is a hereditary king or an elected representative of the people.

Our constitution makers have not paid enough attention to institute checks and balances. In the chapter on State policy there should have been a commitment to moral values in governance like in the Preamble to the American Constitution. We find reference only to social values and not moral values, which should govern the behavior of those exercising power on behalf of the people. The Indian Supreme Court has looked into the Statement of State Policy in interpreting the Constitution. The president has few checks on her power and enjoys absolute legal immunity unheard of in any democracy anywhere.

Party government where the party dictates comes before the conscience of the MPs has vitiated whatever checks remain. But even constitutional checks and balances are only a safeguard. It would be best if the ruler rules on the basis of dharma or the moral law. It is not only in the West that they developed a concept of a law above the law of the state, which was binding on the ruler as well as the subjects. A ruler who did not follow the dharma could lose his crown to others of royal standing or even to pretenders to the throne.

To quote Kautilya: "Subjects when impoverished become greedy, when greedy they become disaffected; when disaffected, they either go over to the enemy or themselves kill the master." He stressed the need to avoid having a king who would not be just.

According to a newspaper report the prime minister is supposed to have said that party manifestos are not to be taken seriously as they are intended to fool the people. The president promised to abolish the executive presidency within a time frame but she went on to contest a second time ignoring the promise. Can a ruler tell lies to the people? Is it all right for a ruler to betray the trust of his people? The ancient Indian sages said that the ruler must be governed by the ‘dharma’ even in the pursuit of ‘artha’ or the secular affairs of the state. Is it all right for a ruler to take bribes and kickbacks for awarding contracts of the state? Good governance requires that the ruler is good. Plato thought that only a philosopher king should rule but a learned man is not necessarily a good man as noted by Kautilya.

Violating ‘dharma’

What is the remedy if the king himself were to indulge in corrupt practices? History has shown how other peoples in other countries in other times have dealt with this problem. King Charles II was beheaded in England. Louis XVI of France was guillotined in 1789. People’s Power in the Philippines overthrew Marcos and the Americans had to cart him to exile. Estrada was to be impeached when he stepped down. These instances show that the people themselves must take the lead to get rid of errant rulers.

Can a subordinate state institution like the Bribery Commission inquire into allegations if any against a president, when such an institution is dependent on the government for its resources and working procedures in interacting with other state institutions? Can such an institution confront a president in office if it were to happen?

Political patronage

Consider the system of political patronage in decision-making in the government. Modern government requires rational decision-making and economic rationality is the principle that should be utilized to decide on economic matters. Modern government requires technical expertise to deal with issues. But if these decisions are taken on the basis of political patronage, what will become of the public good? The exercise of political patronage has ruined financially state institutions like the former Ceylon Transport Board, the Peoples Bank, the Sri Lanka Insurance Corporation as well as rendered inefficient corporations like the CEB, the Petroleum Corporation.

When a business enterprise has a negative net worth where liabilities exceed assets we say it is insolvent. If we consider the enormous public debt owing both to the local people and the foreign debt and tot up the value of the assets remaining in the hands of the state, we realize that the state is bankrupt. It may be able to pay its debt in local currency because of the monopoly in the issue of currency but it will not be able to repay the foreign debt if the foreign reserves are inadequate to do so after paying for much needed goods and services bought from foreigners.

Political patronage, which is known as the spoils system in USA, funded by deficit finance, is the single cause of our present economic and political plight. Both mainstream political parties are responsible for this sad plight.

Locke & Montequieu, political philosophers were concerned with the problem of arbitrary government and how to control the exercise of such power to safeguard the rights of the people. We have the same consideration today championed by those who want to secure human rights. But there is the other problem confronted by men like Woodrow Wilson and Frank Goodnow. This is the problem of political patronage in decision making at a time when the business of government had become highly technical; where chemistry, physics, medicine or mathematics enter the scene and determine what constitutes a right decision. This requires technical men to assist the politicians in decision-making. So there is no place for political patronage.

Politics and administration

But how to control the exercise of political patronage in recruitment to the public service and how to ensure that decisions are not made on the basis of patronage but on the basis of rationality, technical and economic rationality? The theorists of public administration divided all government into politics and administration, assigning to the political executives, the ministers, the job of policy-making and to the bureaucracy the task of execution of policy.

Theorists of public administration have picked holes in the theory pointing out that there are levels of policy-making and execution and that no clear distinction between the two is possible. This is of course correct. But as in the theory of separation of powers to secure freedom such criticisms ignore the normative purpose of such theory. The distinction between policy and execution is to safeguard rational decision-making since the politicians left to themselves would rather decide to exercise patronage than select the best person for a job or the best offer for the award of a contract.

Just as the separation of powers secured freedom from arbitrary government, so the division between policy and administration secured rational technical decision-making. It is this theory we have failed to observe and it’s this failure that has led to unchecked political patronage. The decision making process in recruitment and promotions will be hived off to an independent body like the Public Service Commission. A similar hiving off of financial decision making prevailed during the colonial regime and down to the Donoughmore Constitution.

Today the pendulum has swung too far to the politicians and block sums of money are voted to MPs to be disposed of according to their whims and fancies. How are we to check this tendency? Perhaps by binding the political executive to follow the Financial and Administrative Regulations if the ministers do not respect the division between policy and administration and engage in administration.

There is the principle of the greatest good of the greatest number. But democratic governance is not the same thing as good governance. One may be tempted to argue that political patronage is necessary for the functioning and maintenance of political parties, which are an essential feature in the structure of government. Without the structure of government there may well be no government. We have seen how state structures have collapsed in war torn countries including our own North and East. The people then undergo great hardship. But whether necessary or not (the need has not been established) there is no doubt that patronage politics seriously interferes with the efficiency of governance.

Those who look up to economic development or modernization will agree that efficiency is the fundamental value in governance. Anything like patronage politics, corruption or nepotism undermines efficiency. The Swedish sociologist Mancur Olson argued that the institutional fabric affected economic growth. Political institutions affect the content of decisions on investment versus consumption, growth versus equity. Economic growth is like a public good. While everybody benefits from economic growth and everybody has to contribute to the growth effort, there is the free rider problem. Those who do not contribute to the growth effort also benefit from it.

So there is no individual incentive to contribute to the growth effort since he would benefit even if he does not contribute. So special interest groups like trade unions and even professional groups will try to push their interests even at the expense of economic growth. It pays for the special group to increase the share of the income going to its group than to make a sacrifice for an increase in over-all income.

More checks and balances

It is the duty of Parliament to control the Executive and the Administration which are in the charge of the Executive - the ministers. How is this to be done given the political party system where the Member of Parliament has to follow the orders of his whip and vote rather than decide for himself according to his understanding and analysis of the law or executive action? Other countries have set about this matter firstly by excluding the executive from the legislature as in U.S.A. and in France allowing the ministers to sit in Parliament but not giving them a vote.

The separation of powers is the essential feature of the executive presidential system. Unfortunately we enacted a hybrid form of government neither presidential nor Westminster. By adopting features of both systems we missed a fundamental feature of constitutional government - the system of checks and balances. So our ministers have to be drawn from the parliament and by allowing them to sit in parliament they are able to dominate parliament as well, eroding the parliamentary control of the Executive.

The ministers no longer have to pay attention to their backbenchers that could otherwise haul them over the coals in parliamentary select committees. This must be changed to adopt the position either in France (on which model we have drawn heavily) or in the USA. The ministers too are important for the process of good government. Good government requires that there be competent ministers who understand how to manage large organizations. Those not having any management skills or some superior intellectual capacity will not command the respect of the top officials.

It is not by raising questions in parliament that parliament can control the executive. Lying to parliament, if proved, forces a minister to resign in the British Parliament. But lying to parliament or even lying to the people does not carry any such stigma in our society although it is one of the precepts to be followed according to the majority religion. So wrong or misleading answers are given to questions raised in parliament by the opposition. Sometimes questions raised by the opposition are not answered without considerable delay thus rendering them ineffective.

In other democracies the select committee is one of the most important institutions to control the executive. Members of the opposition chair these committees and they have power to summon ministers and examine them on any subject within the purview of the minister. Officials too can be so summoned and examined about the details of a policy. The parliamentary control of state corporations is exercised through the Select Committee on Public Enterprise. There is also the Public Accounts Committee, which is assisted by the Auditor General. These institutions are essential to ensure parliamentary control of the Executive.

Today decisions are highly technical and these select committees should summon experts from outside the public sector to advise on matters like the environmental impact. Whether a particular decision was guided by technical factors or by the personal preferences of the minister or his officials can be known only by calling experts from both sides of the divide and then the select committee can decide which set of experts are more expert and likely to be more correct.

Judicial control of the Executive

There must also be judicial control of the Executive. The absolute legal immunity of the executive president should go. In the celebrated case United States vs. Lee (1882) the supreme court stated that : "No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government from the highest to the lowest are creatures of the law and are bound to obey it. It is the supreme power in our system of government and every man who by accepting office participates in its functions is only the more strongly bound to submit to that supremacy and to observe the limitations which it imposes upon the exercise of authority which it gives."

But it is up to civil society to see that the elected MPs and ministers who violate the law are punished. We need to allow the supreme court to recognize the need for public interest litigation as in India. There must be accountability for failure to act by administrators, which is so common in our administration.

All praise to the Ravaya editor for his single-minded devotion to the cause against one of the highest in the land. As long as such men are there we can have some hope for good governance. But civil society, particularly the professional men and business groups must back such civic leaders and honor them instead of honouring rogues who are in high places. The judicial control of administrative decisions will make public officials to be more careful in avoiding oppression to individuals.

Free and independent press

Another important control on the Executive is a free and independent press. The offence of criminal defamation must be abolished and a Freedom of Information Act should be passed by parliament. Without a free press exposing the abuses of power, the corruption and irregularities in government, there will not be good governance. In democratic countries it is always the press that first exposes corruption and malpractice. They are invariably then taken up by civic groups and the parliamentary opposition which demands further investigation by a select committee of parliament or other inquiry body. When such inquiries are completed and their report made available to the public, civic groups and parliament demands punishment for the offenders and if they are politicians they resign to avoid further damage to their reputation.

This sequence does not take place in our country. The Sunday Leader has published a series of exposures but the rogues carry on regardless. It is a pity that there is no opposition press which can counter the regular government false propaganda. The opposition party should at least set up a publicity bureau to counter the government propaganda machine.

Improving public administration

We know what public administration involves. Any large organization is noted for the impersonal way in which it deals with its customers. Those at the top cannot deal personally with the large number of persons who make contact with the organization. They may come to collect birth certificates or passports or pay taxes or utilities. Those at the bottom have to cater to them. So those at the top confine themselves to laying down general rules and confine themselves to handling the unusual cases. So they deal only with files.

Those at the bottom know the practical problems faced by the customer but they have no power to vary the rules and must either apply the rules rigidly or refer them to higher authorities for decision entailing delay and hassle for the customer. Those at the bottom nowadays don’t seem to understand the rules or if they do they tend to apply them rigidly and not in the spirit of the rules at all. Often not having the benefit of tradition through lack of knowledge of English they lose sight of the rationale for the rule.

Training could of course remedy this inadequacy. Those at the top today don’t seem to check on how those at the bottom are doing their work and following the rules laid down by them or whether they are serving the public at all. They don’t bother to find out what problems they encounter and find out whether the rules should be modified.

Public servants are expected to act justly and impartially. This aspect has also been undermined by the politicization of the public service. Now they are expected by the ministers to serve only the ruling party supporters and not those who supported the rival political parties. It is the duty of the top officials to see that their subordinates serve the people impartially.

It’s surprising to hear from public servants that they have to go through the contortious procedure because they are accountable. This is a myth. Nobody is accountable in the public service for whatever acts of omission or commission he commits in the course of his duties. There is the policy of the higher official protecting the lower official. The red tape is being used today more as a lever to seek bribes and gratification. The public servant thinks he is doing the public a favour by doing what he is expected to do for which the public are paying him.

Since the organization do not face any competition there is no incentive to efficiency either. It is not surprising that in the absence of competition and accountability there is lethargy, inefficiency and downright callousness on the part of public servants today. The answer is to hire and fire with due safeguards to natural justice. The excessive job security while making promotions depend on politicians means the worst of both worlds. Those who don’t work can’t be fired while they have no incentive to work since they get their pay anyway and their promotions are not dependent on work but on cultivating the politicians. With the politicization the public servants have lost their dignity and dignified status enjoyed under the colonial regime. Morale in the service is therefore very low.
- Sri Lanka Guardian