Holding the government accountable to the citizens

IN the past two decades in our country, we have increasingly heard the words “accountability and transparency of the government”. What is it really and how is it possible for ordinary citizens to hold the government accountable for their actions? Should the government even be accountable to the citizens or should they just be left alone to do their work?

There is a branch of law called “administrative law” that specifically deals with these issues.

When a community decides that there should be a group of human beings who are given the responsibility to govern the community, they also expect the governing body to act responsibly and to be accountable for their actions. Let us call this governing body the government.

The citizens get together and pay all sorts of taxes to pay the salaries and expenses of the government. The government then goes about governing the country.

While the government is given extensive powers to govern the country, they are themselves subjected to various laws. This is to ensure that the government itself follows various procedures that do not result in an abuse of its powers, corruption or even oppression of the citizens.

Administrative law is that branch of the law which is largely concerned with the control of the powers of the administrative authorities. It is intended to protect the ordinary citizens from the arbitrary and unlawful acts of the administrative authorities.

For example, when the act of the administrative authority interferes with the rights of the individuals, the aggrieved persons are provided with remedies against the unlawful act of the administrative authority, including the Government.

Likewise, there could be certain acts or omissions by the authorities that cause injury to the citizens, for example, a dangerous pot hole on a public road that caused an accident. The citizens can hold the government liable for the act or omission of its servants in such a case. The list goes on.

If the citizens cannot hold the Government accountable, then it would become despotic.

There would no longer be rule of law but rule by law.

In a democratic country like ours where we have supremacy of the constitution and rule of law, the opportunity for the citizens to hold the government accountable for its actions abound. Unfortunately, since independence, this area of government accountability has not been given much public exposure.

Hence, we have grown thinking that accountability is only limited to the general elections and that an elected government has a blank cheque. This is not so.

Firstly, we need to understand that it is not only Parliament that makes laws that affect us, but ministers and administrative authorities do too.

Parliament may often pass “skeleton Acts” (called the “parent act”) and leave the rest to be made by the authority to whom Parliament has delegated the task to. These include the rules and regulations made by ministries and other administrative authorities. Lawyers call them “delegated legislation”.

Most of these delegated legislations, understandably, provide wide discretionary powers to the authorities. All these delegated legislations have direct and immense impact on the lives of the citizens.

Should we not worry that the delegated legislation may be such that it benefits only the government and is oppressive of the people? Once again, administrative law addresses this worry. In lay man’s language, these delegated legislations may be challenged in the court of law on various grounds including that it is ultra vires the parent Act.

Secondly, the citizens ought to be concerned with the exercise of discretion of the administrative authority. This is because, while it is inevitable that authorities ought to be granted discretionary powers in many areas of their work, it may be abused.

For example, you may apply for a license or even a simple thing like a passport. The authority has the discretion whether to approve your application or not.

What if you qualify legally on all grounds and yet, your application is refused by the exercise of their discretion? Can you challenge that decision?

The answer is you may if the authority had acted unreasonably or had instead of considering relevant facts, it had considered irrelevant facts. You may also succeed if the authority had been motivated by bad faith or that it had been used for an improper purpose (for example, the officer had been asked by his friend to “cause hardship” to you).

An administrative authority that does not have the legal power to decide cannot make that decision in its purported exercise of discretionary power. This, I believe happens quite a bit in our country but since it is hardly challenged legally, the authority gets away with it.

It should be clear from the brief discussion above that the rule of law which is actively pursued by citizens brings about greater accountability of the government.

Political accountability at the ballot box may be too late because much misery can be wrought on the citizens by an incompetent or corrupt government before the next election arrives.

The views expressed here are entirely the writer’s own.