Confronting executive branch excess.

datePosted on 12:16, October 14th, 2015 by Pablo

Recent court victories by Jane Kelsey and Jon Stephenson have vindicated those who have long complained about the culture of excess that permeates the National government’s cabinet. Excess and abuse of authority preceded the current government but this one has taken the practice to art form. It has resulted in allegations of corruption and behaviour such as that outlined in Nicky Hager’s Dirty Politics, and it has compromised the integrity of the DPMC, GCSB, NZDF, Ombudsman and SIS in doing so. If it did not openly encourage, at a minimum it facilitated managerial excess in agencies “overseen” by a variety of ministerial portfolios. The combination of ministerial and managerial excess–executive excess, to re-coin the phrase–is malignant in a liberal democracy.

Apparently the courts, or perhaps better said, two High Court judges, have caught on to the problem. Although the reasoning of the judge that forced the Stephenson settlement has not been made public, the judge in the Kelsey versus Groser case made abundantly clear that the “unlawful” behaviour exhibited by Groser and his staff included the Office of the Ombudsman as well as abuse of process. Likewise, the settlement of the Stephenson case involved not only a payment but a retraction and statement of regret by the NZDF as an institution, rather than by the command officer who was the subject of the defamation lawsuit. That suggests that more than one individual and branch of government may have had a hand in slandering Mr. Stephenson. Yet no independent review of their actions has been done.

There are other instances where the independence and integrity of reviewing agencies have come into question. Think of the Police Complaints Authority and the skepticism with which its findings are held. Think of past findings (such as during the Zaoui case) by the Inspector General of Intelligence and Security. Think of the way Crown Law has behaved in several high profile politically charged cases. Although adjustments have been made to some oversight agencies like the IGSI and not all oversight agencies are uniformly compromised, there appears to be a necrosis spreading across the system of institutional checks and balances in Aotearoa.

Those who regularly submit Official Information Act (OIA) requests will already know that the process is routinely abused, especially but not exclusively by security services. Delays beyond the mandated time frame for response are common. Censoring of material prior to release is common. So is the Ombudsman’s practice of upholding decisions to withhold or censor material on broadly defined national security grounds. Cynics might say that is a case of one hand washing the other. Others might go further and say that the problem is systemic rather than random and occasional. However skepticism is voiced, there is a sense that when it comes to the Ombudsman and other oversight agencies, they are more about whitewashing than honest scrutiny.

This again raises the issue of politically neutral, independent and transparent oversight. I have written a fair bit on the need for independent oversight of intelligence agencies above and beyond the Inspector General of Intelligence and Security, Commissioner of Warrants and current Select Committee on Intelligence and Security. I have not written about the problems with the Office of the Ombudsman and treatment of OIAs. But it should be clear by now that when it comes to democratic oversight of executive departments and those that lead them, New Zealand is hollow at its core.

Readers may recall that I have written about horizontal and vertical accountability in the democratic state. This academic concept finds real meaning in this case. Beyond the problem of vertical accountability in a country where electoral preferences are the subject of poll-driven media manipulation by government PR agents, elite cronyism is the norm and where civil society organisations are weak in the face of that, there is a serious lack of horizontal accountability in New Zealand. Agencies such as the Ombudsman that are entrusted with overseeing the behaviour of politicians and senior state managers  are seemingly subordinate (or at least submissive) to them. With some notable exceptions, when it comes to executive excess even the courts appear to have become as much instruments as they are arbiters of government policy and behaviour.

The first question that has to be asked is when does ministerial skirting or manipulation of the rules rise to the level of criminal offence? Is the complicity of more than one government entity (say, MFAT and the Ombudsman) in circumventing or obstructing OIA requests a trigger for a criminal investigation?  If not, what is? If so, who prosecutes the offence given current institutional arrangements?

There are a number of reviews and investigations of government agencies already underway. There are Royal Commissions on matters of policy. Private prosecutions are possible. Constitutional experts may know the answer, but I wonder if there also is an overarching investigatory body or process with legal authority that can look into the system of institutional (horizontal)  accountability and oversight mechanisms currently operative in the country. I ask because from where I sit the system looks broken.

15 Responses to “Confronting executive branch excess.”

  1. Lew on October 14th, 2015 at 16:12

    Well said.

    Part of the trouble (leaving aside venality, incompetence, and the coercion of public officials) is that whichever government moves to reform the system to make it more transparent will be immediately bound by the new, more transparent system, which the former government will gleefully use to turn the whole business into a fiasco, regardless of their own prior misdeeds.

    L

  2. Pablo on October 14th, 2015 at 17:29

    So the opportunistic, instrumental dishonesty about all matters transparent extends to the entire political class? I sure hope not.

  3. Daniel on October 15th, 2015 at 07:02

    Good Post:

    A few questions: If Liberal Democarcy is under threat here is this a deliberate push to another system of government or is this simply a case of our system failing and various agencies and individuals taking advantage of it?

    Also: At what point does the actions of such agencies and individuals go past the point of no return and we end up with something other than a liberal democracy?

    Is what we are seeing endemic of something out of sight or is this being caught in its early stages?

  4. Pablo on October 15th, 2015 at 11:24

    Daniel:

    I hate to say it but I believe that NZ stopped being a liberal democracy a while ago. I do not think that it was by design but as a result of political institutional decay resulting in what academics have called a “democratic deficit.”

    In some measure I believe that the situation has its roots in a deeply authoritarian culture that has traditionally wrapped itself in the garb of liberal democracy (and liberalism in general, in the original sense of the word), but which at heart is neither liberal or very democratic. If one looks at the way various volunteer organisations, local councils and ratepayers groups, sporting associations etc. are governed, one begins to see how deeply entrenched this authoritarian culture is.

    The point of liberal democracy, among other things, is that it develops a system of checks and balances in order to curb these impulses at the macro level. These checks and balances are institutional so as to not be at the mercy of political whims and vagaries. But it seems that in NZ the agencies entrusted to perform neutral and transparent oversight have themselves been co-opted, if not corrupted, by the sense of unaccountable entitlement exhibited by ministers and state agency managers.

    I am not sure how to address that very serious problem because even the Kelsey and Stepehenson court victories fell short of resulting in charges laid against the parties responsible for obstructing, suborning, undermining and subverting the laws and processes applicable to each. Plus, in the Kelsey case the delays allowed Groser to push ahead with the TPP agenda without the critical scrutiny that would have resulted had the documents requested under the OIA been released in a timely and lawful manner. So he won the war even if Kelsey won her battle.

  5. Sannikov on October 15th, 2015 at 23:46

    “I hate to say it but I believe that NZ stopped being a liberal democracy a while ago.”

    Could you give some examples of countries that are currently liberal democracies?

  6. AVR on October 16th, 2015 at 02:37

    NZ doesn’t have a lot in the way of checks and balances, and hasn’t had in my lifetime at least. The ultimate check is that a government can get voted right out rather more easily than in say the USA (one house of parliament, no president, I think less officials appointed by the government), but this works only so long as the public can get worked up about abuses of power. For whatever reason the NZ public just doesn’t seem to find the reported actions of the National party a problem.

  7. Daniel on October 16th, 2015 at 07:01

    Pablo:

    Thanks for the answers to my questions.

    If NZ is not a Liberal Democracy then what do we call it?

  8. Pablo on October 16th, 2015 at 11:19

    Sannikov:

    Try Uruguay for starters. There are others but you can find that out by yourself. What is clear is that many advanced democracies have lost their liberal nature, i.e. one derived from a polyarchical approach to power distribution and universal equality for citizens and respect for civil liberties and human rights, due to a combination of corporate influence, interest group lobbying and executive privilege. For their part many new democracies are nowhere close to being liberal but instead instrumentally use democratic procedures to cloak an authoritarian approach to governance.

    Daniel:

    The academic literature on modern democracy speaks of “democracy with hyphens.” That includes limited democracy, illiberal democracy, delegative democracy, consociational democracy, pseudo democracy and a number of others. In Spanish there is a concept known as “democradura” which translates into “hard” democracy. For a full review of these terms you can look up the works of David Collier and his colleagues and critics. The literature is large. Heck, the first chapter of my 1995 book is largely dedicated to this theme.

    I would put NZ in the delegative or perhaps even limited camp. Sure, it has the trappings of liberal democracy on paper and in its electoral system and a formal division of powers, but in practice it no longer adheres (if it ever did) to the polyarchical institutional standards that would characterise it as such. I have yet to decide if this is primarily a function of size, whereby elite collusion is wrapped in democratic trappings, or is a result of a steady erosion of institutional integrity by successive governments culminating in the mess that we have today.

  9. Sannikov on October 16th, 2015 at 18:20

    It’s hard for me to use research to find your opinion Pablo since I don’t know what your cirtieria are. Uruguay is an interesting example but surely it shows that size is not crucial to limiting democracy, because Uruguay is smaller than NZ by every metric. It would also be grimly deterministic to say that the only way NZ could be a liberal democracy would be to merge into some larger polity.

    However I think your concept of what a true democracy is is very Americocentric. I know you don’t like to see your thinking as overly American but this idea that the only way to have a true democracy is to have separation of powers and checks on government policy being enacted is a very American one (though originally of course it originates from French Enlightenment though as I’m sure you know). But nonetheless the Westminster British democratic tradition has always been one that sees checks and balances as secondary to efficient and speedy implementation of the majoritarian will, which would have been compromised by an Amerian-style separation of powers.

    I guess what I’m saying is while your critique of NZ’s status as a liberal democracy focuses on recent factors like the NZSIS overreaching I doubt you would have seen NZ as a true democracy at any stage in its political development – nor for that matter the UK, since all of the problems NZ experiences exist in the UK too, especially prior to 1996. Is this fair? Do you think NZ would do better with an American style separation of powers including such features as strong state governments, a supreme court with the power to strike down legislation as unconstitutional, an upper house with equal powers to legislate, an executive veto, to name a few other things?

  10. Pablo on October 16th, 2015 at 20:14

    Sannikov:

    You are confusing my country of birth with my predilections when it comes to analysis. Moreover, what you are calling Amerocentric is in fact a supposed preference for presidential (as opposed to parliamentary) systems in democracies. There you would be wrong again.

    I grew up and was politically socialised in Latin America, which has a preponderance of presidential systems. I subscribe to the school of thought that believes that presidential systems are more prone to authoritarian excess than parliamentary systems. Although I am not a leader in the field, I have addressed this subject in my academic writings.

    I also, due to my personal background and professional interests, do not confine my view of democracy to the Anglophone world and in fact think that those who do exhibit a form of political chauvinism. There are many ways to skin that particular cat and I have some professional experience writing about doing so.

    I find interesting your notion that parliamentary democracies trade off accountability for efficiency. Efficiency is exactly why presidential systems are preferred in some circles, since parliamentary systems are considered (and often are) disorderly and unstable due to the multiple parties at play and the ensuing difficulties of coalition balance. Presidents, on the other hand, can “get things done,” but that often involves the use of executive orders and other privileges that are inherently authoritarian.

    Parliamentary democracies are designed to check executive power, not consolidate it in the interest of efficiency. Moreover, due to the diverse representation in it, parliamentary democracy is not as inclined to declare absolute mandates based on some purported majoritarian will, whereas presidential systems can do so with 50 percent plus one vote.

    What is true is that parliamentary systems presuppose that diversity of electoral representation equals more oversight and transparency when it comes to government behaviour. For whatever combination of reasons, in NZ that does not appear to be the case.

    Regarding NZ and my political preferences for it. There you do have a point about my US-centric view. That is that the worst thing that could happen to the NZ political system is that it become “Americanized.”

    Alas, it already is, but at least in the US there is an institutional system of institutional checks and balances the mitigates against the propensity of the executive branch to commit egregious abuses of power (however honoured in the breach by GOP administrations). In contemporary NZ that simply is not the case.

  11. Sannikov on October 17th, 2015 at 02:24

    Pablo, I am aware of your biography and your publication record. I stand by my analysis.

    I think we’ve reached the point where you are angry enough at me to look up my IP address and google my name in an effort to get some kind of ad hominem ammunition to use against me, so by all means, go ahead.

  12. Pablo on October 17th, 2015 at 06:05

    Sannikov:

    That was an odd thing to say.

  13. Daniel on October 19th, 2015 at 07:29

    Pablo:

    I agree with your descriptions of democracy in general but I wonder that when democracy needs a wide range of qualifiers that its really democracy.

    As for Kiwi toleration of authoritarian figures and systems, we seem to be willing to bow down with little questions asked no matter which leader we have in power.

  14. Pablo on October 19th, 2015 at 09:41

    Daniel:

    One of the good things about the so-called “transitology” literature and studies of the 3rd and 4th waves of “democratisation” (such as they were), is that they exposed the wide array of institutional arrangements that underpin so-called democratic governance as well as the myriad ways authoritarians attempt to disguise their rule in electoral garb (the PAP regime in Singapore is a good example).

    As part of that original generation of transitologists I have written a fair bit about the differences between procedural and substantive democracy and endeavoured to teach those concepts while in academia. Those days are long gone and it is a pity that the study of transitions and democratisation are not valued in NZ academia because if anything they are especially relevant to the world today.

    Be that as it may, there is always a tension between government efficiency, transparency and representation in democracies, which is why that theme has occupied scholarly attention since the days of the Greeks.

  15. Frederick Miles on November 3rd, 2015 at 14:52

    The US Army in reviewing the Vietnam War reached the counclusion that troop morale and public support for the Viettnamese containment war had been undermined by the previously encouraged war correspondents. Whether correct or not, the US Army had since adopted policies of more restricted access and scope for independent scribes to operate in warzones and embedding Journalists. I do not that neither Mr Stephenson or Mr Hager decided to operate as Independent journalists in the Ukraine and possibly Ms Vinnel the Kiwi international telelevison reporter in the field observing Ukraine/ Russian troop movements was rather braver and more significant.
    What Mr Stephenson and Mr Hager do reveal from the opposite poltical perspective, is the key order of the issue of NZ Infantry and servicement following the orders of their officers and officers of other coalition powers, nb the US and Uk with nominal authorty over them. To me the key issue has alwayss that in effective armed fores, infantry and ratings follow officer orders immediately without question, regardless of international law. If the orders of allied officers with Operational Command authority in the theatre is not followed, New Zealand rapidly loses any credibility with its Alliance allies. Along with massive defence cuts and a lack of resources to support its own and US operations in Afghanistan the British military forces seem to have lost credibilty with US Armed Forces for this reasson and France and Japan are now the major allies in US eyes based on the size, capabikities and relaibility of their contribution.
    International Law in relation to the miltary seems largely to be as unrealistic and as much an attempted barrier to effective military efforts as the efforts of the League and US disarmers in the 1930s.
    But then again it is rumoured that Gerry Brownlie has stated we are now a strategic military ally of the Communist Chinese Military Dictatorship. Amazing. I doubt exercising with them will do anything to promote freedom and individualism in the Pacific.

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