Submitted by Terence Blackett
ITAL has become a compelling and necessary component for any true democracy to flourish. Accountability and transparency have become vogue words that need to be defined contextually or they lose their meanings by overuse or generality. These ITAL components have been used in a variety of political, constitutional, legal, financial, institutional and sometimes ethical and moral contexts.
The political climate within democratic nation-states had changed radically during the early 1980’s, in terms of politics and governments placing more emphasis on providing for public accountability through new processes of open government. The legal framework was meant to provide a wider accountability to executive government and to the general business and social communities. However, its effectiveness in relation to accountability of government institutions to the public in general, as opposed to individual members of the public in their role as clients of government services still remains a highly volatile issue. Barbados is one such nation state where after 47 years of independence – continue to languish behind in adopting a clearly defined strategy for implementing ITA Legislation. Clients of government services still remains a highly volatile issue. It cannot be underscored that there are important implications for our understanding of accountability as a catalyst for change in modern states and their wider application in civil society but also as a medium for curtailing and redressing institutional anomalies. As government, private and public policies change, issues of governance and regulation become increasingly important, including privatisation and devolution, raising new questions about our understanding of accountability and in particular the balance of rights and powers of workers, vulnerable people and institutions.
Some of the BIG questions being asked, for example are: whether new forms of governance are changing public and democratic accountability? How far does government regulation compromise or enhance accountability within the market and economic framework? Does accountability in the public and private sector differ, and is the public interest safeguarded adequately in either case? How do organizations account at the same time to shareholders, employees and the public while being open and ethical?
Questions have also arisen as to how far we see the new forms of responsibility and power enshrined in new forms of global governance, given the increasing presence of market globalization, and how these relate to patterns of trust among political, economic and civil networks and associations. These and many other questions are at the foundation of accountability and transparency.
In this piece, we will attempt to look at some of the issues within the framework analysis of accountability. We will try to focus as much as possible on the contemporary relevance of accountability in the light of the dynamics of government, public policy, the corporate and legal framework. What we hope to determine is whether democratic accountability, though absolutely essential, is really achievable, given the interplay of variables in the arena of law, politics, market and the overall transcendence of global forces at work in an increasingly postmodern world. To unpack ITAL is a formidable task – no wonder governments like ours (BARBADOS) are impotent to implement this proviso given the challenges they face.
In Defining Democratic Constraints
We live in a world of at least 2,000 nationalities, 200+ states and 20 nation-states (where the population is more or less homogeneous). The doctrine of self-determination was one of the most powerful ideologies of the 20th century. The drive to self-determination by disaffected communities created major crises for the international community in places like Kosovo, East Timor, South Sudan and others, and could do so again in one or more of several ethnic and religious flash points around the world. However, these social upheavals are not limited in scope or dimension and those of us who enjoy a relatively peaceful democracy cannot say with any certainty that we are immune from them. Public and social policy must strive for a balance between the rights of individuals, the welfare of identity groups and the interests of the state.
A central plank of ‘democracy’ holds that it describes decision procedures of institutions whereby the preference of the majority of the electorate determines the result. The best justification of democracy draws on a central moral norm of modern democratic welfare states: Individuals have a right to be treated with equal respect and concern. However, the move from “equal respect” to “equal political power” is complicated.
Some critics consider these arguments as fundamentally flawed:
“Democracy is often said to justify governments because the governed have been bound by giving their consent through voting. But this focus on consent seems flawed both as an account of what voters do, and of the kind of bond established through voting, allowing for political patterns of behaviour which is not always in the voters interest.” (cf. Føllesdal 1997).
Ordinarily we do not choose whether to accept or reject the society we grow up in: the act of voting clearly expresses a choice among alternative representatives, but does not constitute a morally binding tacit consent or agreement to be governed. If the government of the day is not listening to the electorate, then the ballot will remedy that condition. In many instances, we do not believe that those who vote for the losers or who abstain are morally free to disobey. Thus actual, tacit or hypothetical consent is not the source of moral obligation to comply. Rather, any actual obedience on the part of individuals can at the very best be taken as evidence of their belief about the legitimacy of institutions, rather than as a justification of these institutions themselves (cf. Raz 1994:338; Walzer 1977).
In Rousseau’s Social Contract p.76; cf.p.46, ‘establishes equality among the citizens in that they… must all enjoy the same rights’. For Rousseau, the government is also as a result of the agreement made between citizens and is only legitimate to the extent that it fulfils the preconditions of the ‘general will’ (Ibid. 136-9,148).
Social commentators like David Held (1984:27) argue that: “A system of representative democracy makes governments accountable to the citizenry and creates wiser citizens capable of pursuing the public interest. It is thus both a means to develop self-identity, individuality and social difference – a pluralistic society – and an end in itself, an essential democratic order.” This accountability would be essential to democratic state order for the mere reason that Held argued that where the vested interests of those who govern would cause them to act in the same as those governed, and as Thomas Hobbes suggest, we would retreat back to a “state of nature” of a ‘war of all against all’. So in order to preserve peace, harmony, while negating the excesses of abuse of power, governments must be directly accountable to the electorate (Ibid.24).
As mentioned above, a key aspect of its vision of society is bringing the market principle, along with notions of self-responsibility and individualism, to almost every sphere of politics, economics and society. Ironically, this principle has been introduced by central government in a top-down, and very often undiscriminating and sometimes haphazard, manner. Aspects of political change which have subsequently emerged, and impacted dramatically on social cohesion, include the:
· disempowering of trades unions;
· severe curbs on public spending;
· privatisation of national industries and many public services;
· compulsory competitive tendering for public sector contracts (often with the effect of ensuring the worst conditions for employees and unsatisfactory services for users);
· deregulation across a variety of sectors (especially affecting finance and business competition);
· favouring of ‘managerialism’ and technocratic approaches to governmental tasks (for instance, releasing of public funds and democratic involvement of persons in decisions affecting their own situations);
· proliferation of non-elected, unaccountable quasi-public bodies (‘quangos’) for management and development of public services;
· more restrictive access to social assistance/welfare benefits (including the draconian measure, recently declared illegal by the Court of Appeal, which sought the complete withdrawal of support to (so-called BOGUS) asylum seekers in the UK);
· new clampdowns on immigration and suspected illegal (legitimated by a discourse presuming foreigners to be significant threats to limited public resources, where derogatory terms like ‘bogus asylum seekers’ and “economic migrants” are used openly and carelessly).
The most socially stigmatized, spatially segregated and economically disadvantaged also become the most politically excluded. The emerging rhetoric even now as we approach another major looming political campaign (2015) will be one of censor for those radicals on the extreme right who feel that a multicultural British society is fast becoming a ‘mongrel society’ because it is gradually losing its homogeneity. Democratic accountability is necessary if the spirit of social cohesion is to flourish in a democratic nation state. Barbados like the UK is also dogged by this kind of incendiary language where movement along CARICOM homeland countries still fuels raucous debate.
Accountability and the Law
Almost  years on and many of the countries of the world (including Barbados have been independent for 47 years) yet continue to grapple with the governance issues of transparency, integrity & accountability in public life but also over international atrocities perpetrated by despotic leaders. (Ratner & Abrams 1997: 291) argue that international law has only in a very limited way recognised individual responsibility for human rights abuses in peace time and in war, where states have either established or engaged domestic or international fora to hold persons accountable sporadically and often with some reluctance.
These critics argue that the increasing international co-operation of member states through the United Nations, The Hague, the International Law Commission’s Draft Code of Crimes Against the Peace and Security of Mankind, the ILC and the General Assembly for the statute of an international criminal court, have been relatively conservative in declaring acts criminal such as the 12,000 people who have been systematically tortured and murdered in the Syrian Conflict so far or the subliminally-germane extinction of the Aborigines of OZ.
However, recent attempts at clarifying the international law where clearly individuals responsible for certain gross violations of human dignity as in the case of Charles Taylor and the genocide of the Liberian people. The methods of proscription involves treaties and customary law to identify these blatant crimes. This criminalisation would cover everything from genocide, war crimes, slavery and forced labour, torture, apartheid as well as those atrocities deemed crimes against humanity.
According to Ratner & Abrams these identified areas of the criminal law forms an ‘unfinished framework’ of binding legal precedences which will makes individuals accountable for serious violations of human dignity. Many acts still remain outside of the existing corpus but acts such as was found in Cambodia, Rwanda, Ethiopia, Uganda, Central African Empire, Sudan, Sri Lanka, South Africa, Equatorial Guinea, Central and South America, Bosnia-Herzegovina, China, Indonesia, Iraq and now Syria must be answered to in an international court of justice (Ibid.292).
Academic proponents are arguing for greater accountability because of the deontological nature of globalization. Since the market crash of 2008, there is great public concern over the existence and extent of corporate crime, there is remarkably little baseline scholarship, virtually no centralised sources of information, no agreement on terminology, and only the slightest sense that we are even now grasping the extent of the problem.
The “scholarship” boils down to two major studies: Sutherland’s White Collar Crime, first published in 1949, and the various collaborative works of Marshall Clinard and Peter Yeager, sponsored by the U.S. Department of Justice, including Illegal Corporate Behaviour (1979) and Corporate Crime (1980). Illegal Corporate Behaviour confirmed Sutherland’s principal finding: corporations violate the law with great frequency. “The 582 Corporations surveyed by Clinard and Yeager racked up a total of 1,554 crimes, with at least one sanction imposed against 371 corporations (63.7%) of the sample. And although 40% of the sample had no actions initiated against them, a mere 38% of manufacturing corporations, out of a total of 477, less than 10% had ten or more actions instituted against them.
We witnessed an even greater travesty in 2008 as an engineered MARKET CRASH brought Goldman Sachs & Lehman et al to the forefront of perpetrators whose casino-style actions brought the global economies of the world to their knees – yet not a single person on WALL STREET have been indicted for what were reckless, corporate crimes. In Barbados, insurance & financial giant CLICO shareholders remain holding the bag to the tune of MILLIONS of dollars based on the EVIL, CORRUPT practices of those at the top of the pyramid. In this ongoing saga, no one has faced any form of criminal justice.
The dysfunction seen in major corporate bodies like CLICO and the shifting paradigms of globalization results in two primary reasons for the implementation of ITAL. The first is failing to preserve “trust” and “accountability” as a relevant category in establishing the duty of directors and officers. The second is the tendency to “monetise” relationships, which inevitably focuses on the short term – in reality, if not in theory. Both of these mistakes stem from failure to consider that corporations, are not simply another interest group whose demands and requirements can reliably be made compatible with societal interests through the need to accommodate other interest groups.
In allowing corporations to become a separate source of power, “a law unto themselves” as it were, it must be expected that there must be within the corporation the element of “trust,” or, looked at another way, accountability.
What must also be underscored is that the shareholders pay the cost of criminal activity by corporations; and they pay for it three times over. First they pay as members of a society with polluted water or rigged markets or dangerous products or workplaces or CROOKED captains of industry. Then they pay the costs of both the prosecution (as taxpayers) and defence (as shareholders) when charges are filed. Then they pay again, for the fine comes not from the bank accounts of the men and women who participated in the criminal activity, but from the corporate coffers.
To illustrate the point further by showing how essential accountability is to corporate culture – the President and Vice President of Beech-Nut Corp. admitted that they knowingly permitted sugar water to be sold as apple juice for consumption by babies. There was a public outcry. The company pled guilty to 215 counts of violating Federal food and drug laws and paid a $2 million fine. This severely damaged the company’s credibility. According to the New York Times, its market share dropped 15%. It is reasonable for the shareholders to expect the directors to make sure that this kind of thing does not happen again. Did the directors of Nestle, the parent company, fire these men? On the contrary. They paid all of their legal fees and continued to pay their salaries during the prosecution.
(Smith 1990: 94-5) argues that limiting the extent of corporate power involves restrictions on managerial discretion in decision made on social issues. Government however can only do so much given that the legislative mechanism have become rather over-burdened. Equally precarious is the incursion of government policies which threaten the market economy. The dilemma can be solved through making corporation accountable through self-regulation which operates more stringently and as (Ackerman 1975) suggest that there must be a climate of institutionalised corporate social responsibility through the branches of professional management.
But the reality of such a notion may not be realistic as argued by Smith who feels that implementation of any policy which will prove constraining to effective business practice – and therefore will be unworkable, but so is ensuring accountability. Smith argued that such corporate atrocities as Thalidomide or the Bhopal poison gas leak or a poisonous water table from “FRACKING” or a jet fuel oil spill which still affects farmers’ livelihood provides a platform for greater measures of accountability or at least legal redress or maybe even the potential for it through government agencies and policy recognition. The real issue is not that as a result of public outcry following an atrocity will corporate regret amount to true accountability, even if the displeasure is followed by legal action against the corporation as a whole or against individuals, the remonstrance would merely be a facade. When the dust settles everything goes back to business as usual.
The machinery of government and corporations are “enshrouded in secrecy and duplicity” according to (Nadel 1976:211) and as Weber suggests ‘every bureaucracy seeks to increase the superiority of the professionally informed by keeping their knowledge and intentions secret’. Nadel argues that secrecy is a source of power for organisational bureaucracies. So lack of knowledge presents a barrier to accountability. The remedial approach suggest that consumer protection policy is critical for public awareness. Health and Safety policies ensures a desirable workplace. Environmental legislation and pressure groups act as levellers against ecological abuse. However, as (Field & Pelser 1998:384) contend that there are more problematic issues about the ‘reach’ of tradition rule of law notions of accountability involved in the criminal process. The new intelligence and information gathering techniques on the ground is the decision to target someone. These enforcement decisions are not merely technical matters of professional judgement but are questions of weighing social harms. Any system of transparency, integrity and accountability must find mechanisms outside of and in partnership with those agencies of social control in society, in order to provide an adequate framework where the mass media, human rights organizations, political parties and the academic community can work together effectively to engineer a culture of accountability. Without it, we will continue to be stuck in the “Dark Ages”!