{"id":146365,"date":"2015-06-23T12:40:57","date_gmt":"2015-06-23T07:10:57","guid":{"rendered":"https:\/\/www.colombotelegraph.com\/?p=146365"},"modified":"2015-06-30T13:47:43","modified_gmt":"2015-06-30T08:17:43","slug":"holding-ministers-responsible-for-exercising-power-without-taking-responsibility","status":"publish","type":"post","link":"https:\/\/www.colombotelegraph.com\/index.php\/holding-ministers-responsible-for-exercising-power-without-taking-responsibility\/","title":{"rendered":"Holding Ministers Responsible For Exercising Power Without Taking Responsibility"},"content":{"rendered":"

By R.M.B Senanayake<\/span><\/a> –<\/strong><\/p>\n

\"R.M.B<\/a>

R.M.B Senanayake<\/p><\/div>\n

Since 1956 financial power is exercised not by the Secretaries or the Heads of Departments as required in the Financial Regulations but surreptitiously by the Ministers. They influence the decisions of the Secretaries and Heads of Departments and the Tender Boards. They invariably have their way for the Secretaries hold office at the will and pleasure of his Minister. If we want good governance we can either revert to the past and keep the Ministers away from interfering in financial matters or holding them directly responsible for the financial management of their Ministries and make the Financial Regulations binding on the Ministers too since presently the Financial Regulations are only issued by the Treasury and only a law can bind the Ministers to observe them.<\/p>\n

The allegations of corruption on the part of the previous President and his Ministers arise from giving contracts to their favorites without calling for tenders, accepting unsolicited offers and awarding contracts at exorbitant or excessive prices padding their commissions into such offers. These are violations of the Financial Regulations. Are they covered by our Bribery and Corruption Law? I don\u2019t think so but would welcome opinions of our learned lawyers.<\/p>\n

The contracts are not signed by the Ministers. Nor are their orders minuted in the files. They are mere oral instructions or hints taken seriously by the officers in charge of the actual decision making. HOW THEN CAN THEY BE HELD RESPONSIBLE?<\/p>\n

\"Cabinet&DeputyMinisters\"<\/a>The responsibility for financial management is vested not with the Ministers or the President as the Minister of Finance but only with the Secretaries and Heads of Departments as the Chief Accounting Officer and Accounting Officer. But in practice the Minister intervenes and decides to do away with tenders, accept unsolicited offers and award tenders to their favorites at excessive prices padded by their own commissions. So who should be held responsible for any irregularity with regard to them? Under the present law only the Secretaries and Heads of Departments however unfair it may be.<\/p>\n

Other countries have enacted laws such as the Canadian Financial Administration Act where in the responsibility for financial management is vested with the Ministers. The World Bank prepared a draft law- the Public Finance Act of 2002 which provided for the same. But it was not passed. Will the new Government pass such an ACT which holds them responsible?<\/p>\n

The Division of Financial Responsibility and Accountability between the Minister and his officials must be in the law. Good governance is seen by economists as a key factor in ensuring national development and prosperity. It must find expression through indicators like reliability, predictability and accountability of decision-making. It involves such factors as the rule of law, transparency,\u00a0accountability and public service ethics.<\/p>\n

Financial Accountability<\/strong><\/p>\n

Accountability can be understood in two senses. In a narrow, technical sense it refers to the\u00a0duty of the head of a department to account as \u2018accounting officer\u2019 to his or her Minister, the\u00a0Auditor-General, and finally the Public Accounts Committee. At a basic level accountability\u00a0means \u2018to give an account\u2019 of actions or policies, or \u2018to account for\u2019 spending and so forth.<\/p>\n

On a wider understanding accountability can be said to require a person to explain and\u00a0make amends for any fault or error and takes steps to prevent its recurrence in the future.<\/p>\n

What is the position regarding these matters in our country today? There has been a total\u00a0institutional collapse in them over the years since 1956. We need to restore the institutions\u00a0and laws to ensure accountability<\/p>\n

Previously I referred to the important provisions of the Public Finance Act 2002 prepared by the\u00a0World Bank which was not passed by the then government or the succeeding governments. Consider\u00a0the controversy regarding the bank account maintained by the former Defense Secretary which\u00a0credited the revenue from land sales to the account and also held a large amount of money\u00a0exceeding what the Treasury normally allows departments to hold. These matters are laid down in\u00a0the above draft law. The controversy arises because these matters are not laid down by law.<\/p>\n

Law versus Convention. Which should it be?<\/strong><\/p>\n

Many matters in the British system of government are governed by conventions rather than laws. So\u00a0even the financial accountability of Ministers is governed by convention. During the colonial period\u00a0we followed this British tradition and gave financial powers to the Secretaries and Heads of\u00a0Departments. These officers then had a personal responsibility for the propriety and regularity of the\u00a0public finances for which they are answerable; for the keeping of proper accounts; for prudent and\u00a0economical administration; for the avoidance of waste and extravagance; and for the efficient and\u00a0effective use of all the available resources.\u201d (D.E Smith). The Chief Accounting Officer is personally\u00a0responsible, in areas for which the minister himself also remains responsible for it is still accepted\u00a0that the elected minister controls the bureaucracy and is also answerable in Parliament for their\u00a0actions. Such are the conventions in the UK. But conventions don\u2019t work except in Britain and not\u00a0even in countries with Anglo-Saxon traditions like Australia or Canada. So it is necessary to examine\u00a0the position regarding financial accountability in other countries following the Westminster System\u00a0like Australia, Canada, the UK and New Zealand.<\/p>\n

Following convention, the respective responsibilities of the Minister and the officials were not made\u00a0law in Britain. The same anomalous position remains in our system of government today as well. But\u00a0this division of responsibility between the Minister and his Secretary and Heads of Departments\u00a0must be clearly demarcated. It has not been left to Conventions even in countries like Australia, New\u00a0Zealand and Canada. They have been laid down by law or at least by a Code of Conduct which is\u00a0binding and enforceable by Parliament. There is the Canadian Financial Administration Act which\u00a0delineates the respective responsibilities of the Minister and the officials. It lays down the\u00a0Accountability of Accounting officers within the framework of ministerial accountability in section 16. In\u00a0Canada, senior public servants, who are the heads of government ministries or departments, are\u00a0given the title of Deputy Ministers. They still, however, receive their authority through elected\u00a0ministers who are appointed by the Prime Minister with authority. While traditionally senior public\u00a0servants are seen as carrying out acts in the name of the minister, they also have responsibilities\u00a0under administrative law. Deputy Ministers in Canada are therefore not accountable to Ministers in\u00a0all matters; they may also receive their own power and responsibility through the Canadian Financial\u00a0Administration Act and are directly accountable for them.<\/p>\n

Ministers Role in Financial matters<\/strong><\/p>\n

Some Canadian researchers suggest that Canadian Ministers take a more hands on role in\u00a0managing their ministries than in other comparable democracies. In Sri Lanka Ministers do the\u00a0same but covertly. They interfere in financial decisions that according to the Financial Regulations\u00a0issued by the Treasury should be left to the officials and officials are powerless to resist them for\u00a0under a politicized system of appointments to the public service they owe their appointments to the\u00a0Minister or Prime Minister and are beholden to them. So if a Minister or Prime Minister wants to\u00a0decide matters which constitute financial irregularities it is not only the official but also the Minister\u00a0who should be held accountable. We must introduce such a provision by law to ensure good\u00a0governance. For this, a law is necessary. Otherwise the talk about good governance is empty\u00a0rhetoric. Haven\u2019t there been allegations against previous Presidents and Ministers? What happened\u00a0to them? Were they ever punished under the law for such irregularities? At most they were found\u00a0guilty by Commissions of Inquiry and deprived of their civic rights by a Parliamentary Resolution. The\u00a0Commissions packed not with impartial Judges but men known to be partial, were often accused of\u00a0prejudice and seeking political revenge.<\/p>\n

The Canadian Parliament in the 1970\u2019s considered recommendations to transfer control and\u00a0responsibility for departmental budget matters from ministers to senior public servants as prevails in\u00a0Sri Lanka. It was thought that this would take out the political element from financial accountability\u00a0and also make accountability more easily managed. The arguments against this move were just that\u00a0decisions must be political if the voting public is to have any control over public management. It was\u00a0also considered that if holding a public servant to account was given to a parliamentary committee,\u00a0such as the Public Accounts Committee, as in our country, non-political enforcement of the\u00a0responsibility was unlikely. Alternatively the recommendations were not implemented as Minister\u00a0Wijedasa Rajapakshe knows about the detailed reports on financial irregularities he submitted as the\u00a0Chairman of COPE a few years back.<\/p>\n

A review of the principle of Ministerial responsibility in a contemporary context is therefore needed.\u00a0Ministerial responsibility has become a great deal more complex than it was when most\u00a0parliamentary democracies were established. Reconsideration of Ministerial responsibility is\u00a0therefore necessary for it cannot be left to conventions of the British Constitution which is an\u00a0unwritten Constitution. Prime Minister Howard of Australia published a guide to Ministerial\u00a0responsibility. Prime Minister Rudd, in 2008, revised chapter 5 of this document, the Guide on Key\u00a0Elements of Ministerial Responsibility (these standards were re-released by the Gillard Government\u00a0in 2010). The new standards introduced obligations in dealing with lobbyists, investment disclosures,\u00a0a bar on some lobbying activity for a period of time after serving as a minister, and a ban on\u00a0fundraising. It did not, however, introduce any changes to the types of failures that Ministers should\u00a0be accountable for.<\/p>\n

Alternatively there may be a code of Conduct for Ministers which may or may not be enacted as a\u00a0law. The Code might declare that:<\/p>\n

\u2022 Ministers are answerable for all acts and omissions of persons and organizations acting under\u00a0prerogative, legislative or contractual authority assigned to them. This means that Ministers are\u00a0personally responsible for their own acts and omissions, and those of their staff and department\u00a0heads.<\/p>\n

\u2022 Ignorance of a matter does not excuse the minister, and ministers should have systems in\u00a0place to ensure they are kept informed.<\/p>\n

\u2022 Ministers must respond to questions about their responsibilities in Parliament, and use freedom of\u00a0information law in a way that does not hinder appropriate public disclosure. This includes facilitating\u00a0the attendance of their personal or departmental staff at parliamentary committees when\u00a0requested. The Code should ideally be enforced by, or subject to the review, of an independent\u00a0commissioner, such as a Parliamentary Ethics or Integrity Commissioner. In addition to non-political\u00a0enforcement of a code of conduct, there are other elements of Ministerial responsibility for the\u00a0Parliament to consider.<\/p>\n

An effective Code of Conduct enacted into law is better. It needs to set out clearly and transparently\u00a0the responsibilities of ministers. Such a set of principles serves to guide the activities of Ministers,\u00a0and provide a set of agreed benchmarks to which the public can hold ministers. The principles\u00a0should be set out in a public document and then incorporated into legislation. This is what the World\u00a0Bank document \u201cThe Public Finance Act 2002 did. Most of the matters laid down in the Financial Regulations issued by the Treasury which are not considered as binding on Ministers are included as\u00a0law. This seems to be the way forward.<\/p>\n","protected":false},"excerpt":{"rendered":"

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