Responses to the Study Guide Questions for

Session A-12, Slide #10

Question 1

Do you agree with the statement: "It will never become possible to completely eliminate arbitrary or corrupt behaviours?" Give your reasons for your answer.

Christopher: It has been suggested that “the only way to eliminate corruption is to eliminate government.”  This pessimistic perspective may reflect the truth in all but the smallest and most idealistic governments.  Government, by its very nature, involves the use of coercive force for induce conforming behavior.  Furthermore, governments have the power to tax and spend.  These activities necessarily require some degree of discretion.  The exercise of this discretion provides the framework for potential corruption.

Mavis: I agree with the statement primarily because things such as corruption are a part of ‘human nature” together with other things both good and bad found in human beings such as greed, envy, love, caring hatred etc. I think what the law can only aim at is to reduce the opportunity of corruption occurring and not its total elimination.

Marlyn: I agree that “it will never become possible to completely eliminate arbitrary or corrupt behaviours”.  This is because invariably in any context, a society does not comprise homogenous groups but rather a complex mix of peoples, cultures, religious and political persuasions.  These groups are often socialized differently based on culture and religion and consequently will express differing social and values.

Social and behavioural responses to society’s policies and rule of law will be different, even while the society’s aim is to have consensus and general acceptance of the rule of law.  Faced with legal and non-legal constraints in the face of a rule of law many individuals may or may not behaved in the desired manner. This is true even among those who are responsible for implementing the laws. Undesirable behaviours are therefore conditioned by factors such as legal constraints imposed by the rule of law, non-legal constraints of opportunity, capacity, process, interest, ideology and the level of awareness of the requirements of the rule of law.  These factors will also determine the extent to which decisions on the part of implementers of the law will be arbitrary and the extent to which they will give rise to corrupt behaviours.

Given these factors it is very difficult to design legislation that will totally eliminate arbitrary or corrupt behaviours. However,  they can be reduced by limiting the grant of discretion to implementation officials and by providing transparent and accountable systems,  procedures and process for making decisions, while involving the participation of the public as far as possible and practicable, in the decision-making processes.

In designing legislation the drafter must also work within the constraints imposed by the constitution and the human rights imposed by that constitution as well as the international protocols which protect human rights and freedoms.

Rob: It will never be possible to completely eliminate arbitrary decision-making and  corruption.  All countries, developed and undeveloped, are confronted to some degree, by these problematic behaviors.   Corruption finds explanations not only in weak individuals but also in weak institutions. Although undesirable behaviors will always be with us, a well drafted bill that limits grants of discretion and incorporates other legislative devices consonant with the principles of good governance will limit the incidence of arbitrary decision making and corrupt behaviors. 

Question 2

Would you agree that incorporating appropriate legislative devices in your bill to achieve the following purposes would likely reduce the dangers of arbitrary or corrupt behaviours? In relation to each purpose, which devices would or would not help? Give your reasons and whatever evidence you have to support your answer.

Christopher: A drafter can minimize the likelihood of corruption by limiting discretion, and providing for:

A.  Transparency.  Secrecy begets corruption.  If government operates outside the view of citizens and other stakeholders, corrupt behaviors may go unobserved.  Forcing officials to operate openly minimizes the risk of corrupt behavior.

B.   Accountability.  Officials must be held responsible for behaving in a lawful and ethical manner.  Officials who can exercise their discretion without being held accountable to citizens and stakeholders are more likely to succumb to corruption.

C.  Participation.  Stakeholder participation, particularly by disadvantaged persons, helps to ensure transparency and accountability.  If stakeholders function not merely as observers, but as participants in the process of governance, opportunities for officials to act in an arbitrary or corrupt are limited.

D.  Limit Discretion.  This may be the most important element in preventing corruption.  Unbridled discretion provides the opportunity for arbitrary decision making.  Corrupt decisions are, by their nature, arbitrary.  The less discretion a statute provides, the more difficult it is for officials to engage in corrupt behaviors.

Mavis:

To ensure transparency

• Examine and if necessary reform the country’s Official Secrets Act
• Require that officials give decisions in writing and specify the reasons for those decisions.
• Ensure public power and opportunity to scrutinise all documents generated under the Bill

To ensure accountability

• Require written decisions giving reasons
• Giving private parties the right to appeal to higher bodies and ultimately to a court

To facilitate participation, especially of the society’s disadvantaged persons

because of the nature of the bill, touching as it does on corporate issues involving banks and such other sophisticated bodies this is not necessary.

To limit discretion

(i) Firstly to limit discretion by limiting the factors which the decision makers must consider namely

• Specifying who may supply inputs
• Specifying the kinds of inputs the decision maker may admit into evidence
• Require written reasons for decisions
• Specify the kinds of considerations an official can take into account in the conversion process

(ii) Require an impact statement as part of the conversion process

(iii) Conduct a discretion audit of the bill.

Marlyn: It is my view that a legislative scheme cannot totally eliminate arbitrary decisions or corrupt behaviours but drafter can draft legislation to limit such decisions and behaviours by incorporating the appropriate devices, transparency, accountability, public participation and limitation on discretion which are essential pre-requisites of a good legislative scheme that could give rise to the desired behaviours on the part of implementing agency officials, as well as the role occupants they serve.

Legislating to ensure transparency

The following devices and measures would help to ensure transparency:

These measures allow public participation and as such encourage a decision-making process which is non-arbitrary as it will be under public scrutiny. Public participation ensures that the interests and ideologies of contending groups are considered in the decision making process and a clearly articulated procedures, criteria and processes will serve to satisfy the contending interest groups that their views are accounted for even if  the consensus decision is contrary to their own self interests and ideologies.

It should be noted however, that the requirement for the publication and scrutinization of public documents and certain decisions might infringe the private rights of individuals which  may  be guaranteed under the constitution.  In this instance the drafter may need to design with this in mind and must be sure following the outcome of research and analysis that the public interest outweighs the private interest of individuals in the process. 

Legislating to ensure accountability

Devices include:

These devices allow for public scrutiny and input and make it likely that the law implementers take account of the proper procedures, processes and criteria as provided for by the legislation in making decisions in the public interests.

Legislating for participation

Devices such as public hearing, requesting public comments and feed back on the implementation process; feedback and comments on legislative review and formulation; public access to the decisions of implementing agencies and the right to scrutinize public documents are important in fostering transparency and accountability and promoting good governance, in addition to limiting arbitrary decisions and corrupt practices.

Legislating for Limited Discretion

Devices to limit discretion would include:

These devices are important for ensuring that decision-making officials avoid arbitrary decisions and reduces the potential for corruption.

What is of grave concern is the fact that legislations are drafted on a continuum- between the transitive and intransitive and invariably legislations tend to be aligned more toward the intransitive with good reason since in designing legislation to promote democratic social change, the drafter will not be in a position to pre-determine all the possible social impacts of complex subject matters involved and as such must leave some aspects of law making to the implementing agencies. This means allowing an implementing agency the power through delegated authority to prepare regulations which often are required to establish procedures, processes and criteria in furtherance of the purpose of the principal legislation.  By this very act though, there is a grant of discretion through the delegation of powers since the wording of such provisions usually reads something like this “ the minister may make regulations….in furtherance of the purpose of this act”  Such approaches gives too much discretionary power and  authority to the implementing agency which may or may not promulgate these regulations thereby allowing for an ineffective implementation of the principal legislation. This often promotes arbitrary decision-making and encourages corrupt practices, in the face of a deficient legislative scheme and the absence of a supporting regulating framework outlining, procedures, processes and criteria for decision-making.

I believe therefore that as far as possible the drafter should limit discretion in the drafting of  principal legislations for democratic social transformation by incorporating at the outset and as far as possible and practicable the  procedures, criteria and process which are transparent and clearly articulated. Further, where the complexity of the subject matter requires that the drafter incorporates provisions for the subsequent making of subsidiary legislations , the drafter should draft these provisions specifying what areas, circumstances and conditions in which new regulations should be made while removing the discretionary element by using the wording “shall make the relevant regulations in furtherance of the propose of this act”

These provisions will serve as a guide also for lawyers and judges in the event of any dispute arising from allegations and claims of arbitrary or ultra vires decisions on the part of implementing officials.

Rob: Drafting defensively against arbitrary and corrupt behaviors, and drafting affirmatively for good governance are essentially the same thing. The legislative devices used to reduce the incidence of arbitrary or corrupt behaviors are the same devices used to promote the underlying features of good governance.

a. To ensure transparency – Transparency requires that officials conduct government business openly so that the public can learn about and debate its details. Devices likely to advance this purpose include limiting the scope of a country’s Official Secrets Act; ensuring that the public has the power and opportunity to scrutinize the documents used in decision-making processes; ensuring the public has an opportunity to attend hearings and otherwise provide input into decision-making processes; and requiring officials to provide written decisions for their decisions.

b. To ensure accountability – Accountability requires decision-makers to justify their decisions publicly and include a process for review of decisions to a higher authority which, depending on the nature of the decision, may ultimately be the electorate. Devices likely to ensure accountability include (once again) written decisions; a process of appeal; and the provision of legal aid  for disadvantaged groups and individuals.

c. To facilitate participation – Participation requires that stakeholders, including society’s most disadvantaged persons, have maximum feasible opportunity to particiapate in governmental decisions. Devices to help ensure that decisions are participatory include: input and feedback processes that allow participation; a requirement that officials provide sufficient information about the nature of relevant problems to enable stakeholders to participate effectively; ensuring participation in agency decision-making by representatives of disadvantaged groups through the use of a public advocate.

d. To limit discretion – Devices for limiting discretion include specifying who may provide input; the kinds of considerations an official may and must take into account; written reasons; and the requirement of an impact statement as part of the conversion process.

Question 3

What kinds of lessons might you learn from examining other countries experiences with efforts to draft defensively against arbitrary or corrupt behaviours?

Christopher: The chief value in examining how other countries have approached drafting to prevent corruption is to see which approaches have failed, and to analyze why they failed.  This analysis should assist the drafter in crafting language which “closes the loopholes” that allowed the corruption to be operationalized.

Mavis: As always the lessons are two pronged-

• What has worked for them so as to see if it can adopted with necessary changes to reflect differences between countries and,

• What has not worked so as to avoid making the same mistakes.

Marlyn: Lessons to be learnt from examining other country’s experiences with efforts to draft defensively against arbitrary or corrupt behaviours.

Some countries use extreme devices to limit arbitrary decisions and corrupt practices such as :-

However the promulgation of criminal laws against corruption serves mainly as and educational tool since they educate that the country disapproves of corruption but they do not really deter.          

Other measures include:-

These measures may be more effective as they tend to address institutional causes for corrupt practices. Such causes relate to factors of inadequate or inefficient opportunity, capacity and processes which encourage implementing officials to exhibit problematic behaviours in the face of a rule of law and these factors may even more pervasive in giving rise to the problematic behaviours than the officials’ subjective interests and ideology.