Checks and balances

The American Constitution has been hailed as one in which the Founding Fathers ensured that there would be no absolute and unlimited power vested in any one state entity.

The written Constitution is supreme, with a strict separation of powers built in. It is adjudicated upon and interpreted by Judges of the Supreme Court whose life time tenure is secured.

The Federal Government is checked by the provisions of the Constitution, the rights of citizens protected, especially by the first 10 Amendments – the Bill of Rights, ratified effective December 1791, the powers of Congress and the powers the constitution gives to the States, term limits on the President and legislators, provisions for voters to be able to recall legislators, etc.

The first Amendment, Freedom of Speech and the Press, Rights of Assembly and Petition, have progresses far in excess of any safeguard on absolute power the Founding Fathers envisaged. The Supreme Court has been very zealous in expanding this protection to its farthest possible limits in today’s age of television and electronic media, such as e-mail, Face Book and Twitter.

The Vietnam Papers, Watergate, the Nicaraguan Contra scandal, Whitewater, etc., where investigative reporters exposed scandals in government which would have only seen the light of day in a legal regime which protects the Freedom of the Press to the extent the American Constitution and judge made law does.

The Founding Fathers, in this respect, predicted what Lord Acton in 1887 wrote to Bishop Mandell Creighton: “Power corrupts, absolute power corrupts absolutely.” Indeed the Founding Fathers were ahead by over 100 years. This was probably a reaction to the absolute and despotic power exercised by George the 3rd of Britain over the American Colonies.

Fractious American politics

This situation has always made American politics fractious. It is indeed seen as strength of the system. These checks and balances prevent abuse of power and compel consultation, compromise and consensus building. However currently in America, these checks and balances combined with political polarisation allow a small number of legislators in Congress to virtually bring government to a halt.

It almost happened a few weeks ago when President Obama and the Republicans who control Congress could not agree on raising borrowing limits for the US Government. It has in the history of the USA, happened twice before, once, when Newt Ginrich, leader of the Republicans in the House and Bill Clinton in the White House could not agree on a budget, and once much earlier in history.

Some analysts describe the Constitution of the US as a recipe for paralysis, if compromise is not possible. The weeks of unending posturing over debt by the Republican and the White House, seriously worried the American business community and economic policy makers worldwide.

Over the years their confidence in the politicians’ ability to overcome partisan disagreements in the national interest has reduced drastically. Surveys by the World Economic Forum, notes that currently the confidence of American executives in their legislators has fallen, in 2009 American ranked 24th for ‘government effectiveness’ in 2000 it was 15th!

The months of partisan wrangling, broken deals and brinkmanship, with the threat of default hanging over the US economy struggling to grow and create jobs has been debilitating. The willingness of one party to use the threat of default, if not on government bonds, then on other Federal obligations such as pensions and pay cheques, marked a very dangerous escalation in the partisan rancour that has come to bedevil policymaking in the US today.

The weeks of posturing over the debt has caused many businessmen and investors to put their investment and expansion plans on hold. This seemingly political dysfunctionality has seriously brought into question whether the American political system has lost its direction.

Can power really be absolute and unlimited?

Can power really be absolute and unlimited, as feared by the Founding Fathers of the US Constitution, which motivated them to enshrine and institutionalise the separation of powers in categorical terms and place a series of legal checks and balances on the exercise of power?

Though throughout history in many instances it may seem to be so, in reality there are limitations. The limitations are broadly of two types. Limitations that are ‘enforceable’ and those that are ‘intangible’.

Enforceable limitations are those that the violation of which are punishable by the law of the land. It is these enforceable limitations which are easily violated. For example, by subverting the enforcement authority to ignore and not take cognisance of violations, such as a company not submitting its annual report and accounts on time and using bribery or undue influence to avoid or postpone sanctions.

Intangible limitations are those that exist but are difficult to describe, understand or measure, although they do not exist as a physical entity, as in a law or regulation, it is still a limitation. The best example is social sanction. That civil society may impose a stigma on persons who behave in a manner they disapprove.

Violation of these intangible limitations in some situations may also involve violations of law, the enforceable limitation, but not always. Most often it is a situation an individual creates for him or herself through a moral choice. By freely and repeatedly choosing certain sorts of things or courses of action, individuals shape the parameters of the perception their peers, civil society and the world at large, have of them.

This perception if negative is a highly persuasive force on people to adjust their behaviour, in the hope to change the perception to a more positive level. It is only a foolhardy person drunk with power and crazed by his own imagined impunity who will violate these precepts. It is the lesson of history that ultimately there has to be an accounting.

Sports persons follow the ancient adage ‘when the Great Scorer finally comes to write the score against your name, he writes not, whether you won or lost, but on how you played the game’. There is an English proverb ‘sow an act, reap a habit, sow a habit, reap a character, sow a character, reap a destiny’.

The process of creating a public perception can be compared to the work of a potter who moulds clay into a finished product. We hold ourselves in our hands and shape the perception others will have of us as good or bad. Within the course of a single lifetime, a particular pattern of behaviour leads inexorably to a perception being drawn, either positive or negative.

Dangers of political power

Jim Powell of the Cato Institute has written: “Few recognised the dangers of political power as clearly as Lord Acton. He understood that leaders put their own interest above all and will do just about anything to stay in power. They routinely lie. They smear their competitors. They seize private assets. They destroy property. Sometimes they assassinate people, even mark multitudes for slaughter. In his essays and lectures, Acton defied the collectivist trend of his time to declare that political power was a source of evil, not redemption.”

Even in the animal kingdom there are basic rules which make up a part of instinctive behaviour. Among any animal species one finds such rules, even among animals, power is not absolute, but limited and controlled. Exceptions are when an elephant is in musth or a rabid jackal thinks it can take on the mighty leopard!

When human beings first evolved, the family group had its basic rules for conduct, as tribes came together for protection from predators and other competing human beings, the recognition of the leadership of an individual and/or his family became customary. Rules evolved as to succession and settlement of leadership disputes.

The evolution of a group of persons who claimed that they could communicate with the creators of supernatural events, and even predict future events, such natural phenomena such as flood and drought, which was critical once the humans has crossed the threshold from hunter gatherer, to pastoral livestock men to settled farmers, led to customs evolving on how to treat this priestly ruling caste and for their own survival a set of do’s and don’ts which would ensure the continued respect from and the exploitation of the community they served and/or lived off.

In time when the numbers became unwieldy, representation became a device of choice and people were chosen to express the views of a particular tribe, community, or those living in a geographical area. Rules evolved as to the selection of these representatives, their conduct, their accountability and the time frame during which they could operate. These rules had to be promulgated, applied and violators punished.

The need to separate the functionaries who carried out these functions of legislation, implementation and adjudication evolved over time. The need for the supremacy of the law, that all beings and institutions are subordinate to the law grew over time. The axiom that the law, and nothing else, should rule, became entrenched in human thought.

The late Lord Bingham, one time England’s Master of the Rolls, Lord Chief Justice and Senior Law Lord, in a book, ‘The Rule of Law,’ has included, accessibility of the law, equality before the law, right to a fair trial, legal accountability of servants of the state, a right to education, protection of fundamental human rights, application of law rather than discretion when deciding questions of legal liability, etc. among the fundamental eight principles which underpin the Rule of Law.

The written Constitution of the USA, with strict separation of powers and the wide latitude given to media freedom is the best example of enforceable and also intangible limitations on the abuse of power.

Intangible limitations

Intangible limitations are probably more powerful than enforceable ones. In that the enforceable ones can be evaded and even in some situations avoided, in the absence of strong independent institutions, manned by free thinking men and women. But the intangible sanctions will definitely inexorably come home to roost, somehow, somewhere, sometime. That is the lesson of history.

Recently we have witnessed power being more and more centralised. A single political party dominating most elected institutions, with the exception of those in the north. An executive authority which has removed the constraint of term limits and is amassing more and more power in itself, including the removal of any constraints which may have existed of filtering the suitability of appointment of individuals to important posts and institutions which should have provided the checks and balances on executive power as envisaged originally. The media is under pressure. Civil society is working under severe constraints.

Census of elephants

Consider something seemingly as mundane as a survey or census of elephants in the wild. Civil society environmental organisations willingly supported this Government initiative initially as a welcome step to inject some sense and sensibility into the nonexistent ‘policy’ surrounding the critical issue of human elephant conflict. The present dispensation is destructive to humans, elephants and everything else!

However, a suspicion that there is an ulterior motive to the census, that it is being done to identify tuskers in the wild to be noosed, kidnapped from the herd and handed over to religious institutions of choice, a suspicion, it may be added, which is based on the loquaciousness of a particular worthy who is thinks he is at the helm of affairs on this matter, has led to the environmentalists and conservationists withdrawing from the process due to their inability to get the definite and credible clarification they require to continue to support the initiative.

It is this basic lack of trust which flows from the lack of checks and balances which is the problem. There is no restraint or constraint on going back on ones word and no tangible remedy either, for a violation of a solemn word or undertaking. It is clearly an intolerable situation.

A matter of attitude

Checks and balances live in the attitude of the persons concerned. For example where the media is concerned, although all legal provisions for non biased and fair reporting may be subverted, the journalists themselves may respond to the intangible limit of public perception of their credibility and decide to report in a balanced manner.

In the same way, the judiciary, although all legal measures to ensure their independence may have been negated, the judges themselves may decide to act in an independent manner to protect their reputation and the very concept of an independent judiciary in the public eye.

We see these sorts of things happening from time to time. Intangible limitations to power are difficult to undermine all the time, 24 hours a day, seven days a week, 365 days in the year. That is the hope which has sustained civilisations and humanity from time immemorial.

(The writer is a lawyer, who has over 30 years experience as a CEO in both government and private sectors. He retired from the office of Secretary, Ministry of Finance and currently is the Managing Director of the Sri Lanka Business Development Centre.)