Sunday, September 20, 2020

Executive Orders and the Running of a Government

The running of any government has had as a critical feature of its public administration practice, the use of Executive orders by the presidency to define, introduce and often respond to new directions as preferred by the presidency’s policy and political inclinations. This week I want to give a brief summation of issues that surrounds the executive orders of not just new presidencies but even of presidents long in their tenure of office.

Firstly, what are executive orders? These are often entailed in presidential directives requiring or authorizing some specified actions within the public service, especially in the executive branch of government. These directives historically emerged as the president’s role and authority in the law making process, outside legislative control and authority. They provide an avenue for presidents to make official orders or issuance of proclamations legally defined as fiats or legal instruments that, although outside the conventional law and policy making processes, often create and modify existing laws, policies, procedures and otherwise known public administration practices within public institutions.

There are a number of reasons why the use of executive orders is a common feature of any government’s public administration practices and amongst many are these that I will speak to briefly.

The practice of separation of powers as a way to safeguard democracy and protect individual and group liberties against the often potential abuse of power by leaders, defines the role, power, and authority of a president in any governmental setting defined by a country’s political system. In other countries it’s not always the case that the makeup and control of the three arms of government, in particular the legislature and the executive, are in the hands of the same party. This is the case in mainly countries where there are separate and independent elections for both legislative and presidential leadership and the resultant vote meaning could have placed the control of both the executive and the legislature in the hands of two different political parties. In such a scenario, the president will regularly make use of executive orders to advance his/her policy and political outlook, especially if it substantial differs from the preferred direction of the legislature. It is however often a practice that the presidency will first engage legislative leaders of his party and the opposition to seek for their approval for what may be considered a diversion from approved legislative instruments. These are diversions or tweaking of national plans, budgets and legislatively approved laws and policy initiatives and this is why some say presidential powers are essentially an embodiment of the presidency’s power to persuade.

This is particularly important in situations where the separation of powers may have practically weakened the president’s powers and authority such that the legislature wields substantial powers to check and vary presidential decisions. It becomes critical important in these cases for the presidency to endeavour to secure legislative approval on any key programmes and projects that commits government’s financial resources outside approved budgets and plans. The persuasive leverage of the presidency will often be backed by the envisaged benefits of the new changes measured and defined in the national interest. There are situations where the presidency will engage and dialogue with the legislature for convenience and formality purposes and when approval or endorsement is denied, the presidency would sometimes use executive orders to make unilateral policies without legislative consent and in other situations without judicial sanctioning as well.

The latter scenario is common in situations where the separation of powers practical gives the executive the big-brother status and often backed by the constitutional provisions the presidency would have immense powers, and authority to make these unilateral laws and policies outside the legislative confines. It is under this situation that the presidency would then be deemed to possess law and policy a making powers outside the conventional legislative powers and authority and when such is the case the executive will mostly dominate the policy making process and legislative powers and authority over plan and budgetary approvals may be simply overturned or ignored by the presidency. The other scenario, close to home is where both the executive and the legislature are controlled by the same political party. This situation would ordinarily provide for a much easier understanding between the legislature and the executive and any executive orders would be expected to carry a legislative backing as well as that of the political party in power. This has not always been the practical reality as new presidents of the same political party in power, have often used executive orders to give new policy and political direction to the role of government. This has not always been with the blessing of the legislature or even the ruling party.

The extent of the easiness and support of both the legislature and the ruling party depends heavily on the commitment of the presidency to engage those entities and the value it attaches to their views, especially as representatives of citizens in a democratic setting. It is very clear that executive orders are an essential and indispensable policy and political tool for presidents and sometimes their staff, especially where there is a commitment to vary, remodel or depart from hitherto known public administration practices. The regularity and attached authority and powers to the proclamations, official orders, new propositions and decrees will effectively define the presidencies position with respect to how it intends to practice the separation of powers and largely if there are any postures suggesting that engaging the legislature in particular, could be deemed as hump in the realisation of the executive intentions.

The use and character of executive orders therefore are themselves a clear indicator of the presidency’s perspectives and interpretation of the feasibility and importance of past public administration practices and the preferred choice of how the principle of separation of powers ought to be implemented. Executive orders are important in the presidency’s use of policy and political preferences to define a path for the development of the country and they can be used rationally and objectively to protect and entrench good governance practices or can easily be an instrument of malfeasance and unethical public administration practices. It’s the presidency’s call to make and define the outlook and demeanour these executive orders will give to commitment to prudency, accountability, effective and constructive engagement and overall good governance practices.        

*Daniel Molaodi teaches Public Administration at the University of Botswana


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Sunday Standard September 20 – 26

Digital copy of Sunday Standard issue of September 20 - 26, 2020.