Monday, September 28, 2020

Concluding the Explorations on Discretion and Responsibility

A fortnight ago I presented, in this paper, what I saw (and still see) as an abstract exploration of the definitional aspects of the use of administrative discretion in public services.

That piece also talked of some levels of discretionary decision making within organizational structures and the likely effects of these decisions within a democratic ÔÇôgovernance setup.

I wish to extend my exploration by revisiting an old debate on how to hold unelected officials accountable and establishing checks and sanctions necessary to contain the use of administrative discretion, within acceptable ethical standards.

I want to believe that we should be interested in the role of public administration and the feelings and processes it evokes as one of the manifestations of efficiency driven pursuits for the enhancement of democratic practices.

Even in the absence of that interest we should still be able to appreciate the effects of some discretionary decisions and the extent of their impact on democratic governance.

Often we concentrate on the political decisions as though they are the only ones that matter, but without entering into the old debate of whether or not we can separate politics from administration, it is absolutely critical that we evaluate the major discretionary decisions taken within bureaucratic structures on the basis of their contribution (positive or negative) to issues of citizen empowerment, participation, accessibility and enhancement of ethical and moral conduct.

One of the most notable events in public administration history was a debate in the 1940s between a German by the name of Carl Friedrich and a Prussian called Herman Finer.

The two gentlemen (if they were indeed gentle in any sense) engaged in an intellectual debate centering on how and who should ensure or control the use of administrative discretion and responsibility. Carl Friedrich believed that discretionary decision making should be guided and be responsive to two critical and dominant factors.

First, as and when public servants engage in any discretionary decision making, they must be guided by the technical knowledge they possess within their areas of expertise and other related professional areas having a direct impact on their decision’s effects. In Carl’s view, when some top civil servants were declared “dead wood” by their superiors in the 1990s and the subsequent enforcement of voluntary retirements within the public service, as well as the visible incidents of ‘unplanned’ retirements by people at very senior positions within our public service, it was all because of a thorough assessment by those who possess the technical knowledge about the positives and negatives of the likely effects of such moves, particularly as that relates to service delivery to citizens.

We may wish to question whether some of these decisions were democratic or undemocratic, to individuals in the sense of them been ‘forced’ to retire, or to the larger public service and the general citizenry as they could as well have been denied the expertise or services of these officers.

Secondly, there is the issue of, what Carl termed the popular sentiment, as defined by rational and professional expertise, as opposed to popular political and value ridden sentiments.
The combined effects of the two were provision of inner checks on the behavior of public administrators when utilizing discretionary powers.

The expectation here is that within our public service there should be in place structures that can make a thorough assessment of whether those who are been retired are firstly not undone by that discretion of some individual, even if he/she has the legal backing of some statutory provisions.

Secondly, the same structures must also determine the short and long term effects of such actions on both the efficiency of the public service and possible infractions on the need to engage the citizen for participation and accessibility opportunities to various services. This of course is a tall order and difficult as it might be, if indeed science, rationality and objectivity are to be guiding operative aspects in public services, then we ought to look for structures that will provide decisions that are informed by these operatives.

We have over the years adopted a number of public service reforms that included, parallel progression, organization and management, work improvement teams, performance management systems and balanced score cards, amongst others.

All of these are anchored on the need to increase productivity in the public service, but more importantly they were all practices that are inherently rational based and consequently intended to reduce subjective decision making.

The argument above discounts controls through legislative or parliamentary ways as largely inadequate and ineffective, principally on account of the likely intrusion of partisan politics; and, the inherent complications around public policy resulting from the need for compromises, dealings for interest based positions and other related issues.

We might want to reflect on the relationship and power relations between our executive and parliament to assess whether we can do better with legislative oversight arrangements in our country. Instead, substantial discretionary powers for public administrators within the ‘right’ structural/institutional framework are required to control discretionary decision making.

It emphasizes the novelty and complexity of the modern state, which attributes calls for creative solutions an ideal that could not be adequately guaranteed through the popular will derived and guided by organs such as parliament.

The obvious question would be, do we have these types of institutions in our public service setup? I will not provide the answer hear, but your guess and assessment on this is as good, or bad, as mine.

It must be noted and understood that the hierarchical conception of administrative responsibility within our public service, like elsewhere, does rest on politically derived power, despite all other failures associated with lack of strong parliamentary control measures, particularly with respect to enforcement aspects.

What are some of the known theoretical explanations for this view about ineffective legislative controls? Firstly, the legislative process is mandated to promulgate legislative pieces that could sometimes be riddled with ill defined and occasionally contradictory policies. The solution in this context is assumed to be in allowing administrators enough discretion to take responsibility of making sense of the grey areas.

An underlying assumption here is that the expertise and professional training possessed by public servants affords them greater chance to rationally adapt, adjust and make policies clearer at the execution stage. Secondly, trying to stick to the old concept of separating politics from administration creates problematic complications for smooth implementation of policies, because it tends to stifle the public servants’ ability to make discretionary decisions, or as they say, to think outside the box.

Thirdly, this position attempts to balance the concept of administrative responsibility with the pace and complexity of administrative tasks and in the process discounts possibilities of arbitrary abuse of power if administrators are not monitored through or by legislative bodies. The basic argument is that a responsible person in the form of administrator is one who is or ought to be answerable and accountable for their actions based on scientific reasoning which is unquestionable and rooted in rationality.

The actions of public administrators should be premised on their technical knowledge or expertise, which gives them insights into defining preferences for the public or at the least should assist in that process of identifying public interest for democratic purposes. This role is envisaged to be a very rational and objective based exercise and affords for technical responsibility to easily monitored and evaluated by other experts.

However, Herman Finer strongly believed that the public officials’ sense of responsibility should not be relegated to neither political sentiments nor technical expertise because if that were to be the case, sooner or later there will be abuse of power when external punitive controls are lacking.

In his view, “the servants of the public are not to decide their own course; they are to be responsible to the elected representatives of the public, and these are to determine the course of action of public servants to the minutest degree that is technically feasible” (Finer, 1941).

In this context any discretionary decision such as the one referred to earlier in the text (of dead woods and early retirees) should be sanctioned by external legislative controls which are meant to provide legitimacy which is seen as lacking within bureaucrats.
It would be clear here that Finer suggests some arrangements that are not part of our system of controlling the use of administrative discretion, at least at a practical level, though I would add that even at a conceptual or theoretical level we have not yet had any legislative institutions that could exercise control over the power to use discretion.

In Finer’ s view, it is necessary to put in place external mechanisms through which both politicians and officials can be either corrected or punished when they abuse their discretion or when it can be established that resultant from that decision, was denial of citizen involvement, engagement or denial of access to democratic requirements.

Paramount to the above is the belief that people or citizens are the sovereign and therefore it is about self-government and not necessarily good government. As a result, democratic governments like ours require firstly, the sovereignty of the public or mastership of the public, secondly, institutions such as the public service, must express the will and authority of the people, and thirdly, bureaucracies must conform to the will of the citizen in actualizing democratic practices.

In the absence of external controls there’s often malfeasance, nonfeasance, and overfeasance, which are seen to be burdens on people’s desires for democratic access to resources and therefore a threat to their sovereignty.

The big question is, are we at a stage where we should consider the manner in which some very key discretionary decisions by our top senior civil servants can be subjected to controls through other external legislative organs? Maybe statistically, decisions of this nature are and have been of less significance, but that they do occur and have been gaining regularity since the era of the “dead wood” in the public service, it might be time we considered the effects of going that route and assessing whether that may enhance efficiency and decision making that are less subjective and sometimes victimizing to individuals.

In conclusion, I would say that in spite of the obvious sanctity on the belief in science and objectivity in rational policy decision making in general, we could do with arrangements where we have our “experts on tap but not on top”.

This article will hopefully provide food for thought in assessing our bureaucratic arrangements as they relate to the use of discretion and the associated responsibility for such in our public service.

*Molaodi is a Lecturer of Public Administration at the University of Botswana


Read this week's paper

Sunday Standard September 27 – 3 October

Digital copy of Sunday Standard issue of September 27 - 3 October, 2020.