September 27, 2006 - No. 142

Inquiry Into Canada's System of Government

Conception of Accountability in the
Federal Accountability Act

- Sandra L. Smith, National Leader, Marxist-Leninist Party of Canada -

A serious problem facing the polity is that major changes are being made to Canada's institutions and way of doing things and the public is kept basically uninformed or disinformed about the measures and/or their significance. Such changes are made by the Federal Accountability Act, introduced to Parliament on April 11, 2006 right after the federal election which brought the Harper minority government to power. Even though the Federal Accountability Act is a massive bill, some 250 pages long, Canadians know little about it. It introduces changes to more than sixty pieces of legislation, and includes within it several new whole statutes, such as the Conflict of Interest Act. It expands the scope of the Access to Information Act to cover seventeen new organizations, seven agencies and four foundations. It tables the amendments proposed by the Information Commissioner while also tabling a discussion paper on information access. It was announced together with an Action Plan with measures the government could introduce immediately without parliamentary approval. As such, the Action Plan is already being implemented.

Harper succeeded in putting the opposition parties in the House of Commons on the defensive on the issue of accountability such that the Act passed unanimously with more than 200 amendments addressed in the House prior to the legislation assuming its present form. It is now at the Senate which is hearing from some 70 witnesses.[1]

The Harper Government's Conception of Accountability

The Federal Accountability Act was the centrepiece of the electoral campaign of the Conservative Party in the 2006 elections. It was presented as the means of ensuring "accountability and change" and overcoming the corruption of the previous Liberal governing party. It was presented as both a response to the Gomery inquiry and a means of addressing aspects of the problem which were said to be beyond the purview of the Gomery Inquiry. The Act and the Action Plan have been described as "anti-corruption legislation" and as "turning a new leaf" and "cleaning up government."

In introducing the Bill, Prime Minister Stephen Harper said: "With the Federal Accountability Act, we are creating a new culture of accountability that will change forever the way business is done in Ottawa." John Baird, President of the Treasury Board who tabled the legislation on behalf of the government, said: "Accountability is the foundation on which Canada's system of responsible government rests. It is key to assuring Parliament and Canadians that the Government of Canada is using public resources efficiently and effectively, and that it answers for its actions."

What then is the government's conception of accountability?

Following the 2006 election, the Marxist-Leninist Party of Canada (MLPC) pointed out:

"To find out what Harper means by change and accountability Canadians will have to study how he is intervening in the situation. He has already said his first act in government will be the Federal Accountability Act. From what we have seen thus far of Harper's views of accountability, it does not include taking up social responsibility. It is the same notion as that of Paul Martin. Harper will likely introduce new rules and regulations and what are called oversight procedures, but none of this will deal with why the corruption or conflicts of interest occur or even properly identify what constitutes corruption or conflicts of interest."[2]

Facts have borne out this prediction.

The conception of accountability in the Federal Accountability Act and Action Plan that goes along with it is that accountability is ensured by oversight -- by spelling out rules to catch wrongdoers. This conception is not fundamentally different to that of the two previous accountability initiatives, the first by the Liberal government under Jean Chretien in May 2002, and the second by the Liberal government of Paul Martin. Neither initiative stopped the corruption or the conflicts of interest.

The May 2002 initiative included an 8 point action program with new guidelines, a new appointment procedure for the Ethics Counsellor, a Lobbyist Registration Act, a Code of conduct for MP's and Senators, limits on political contributions and regulation of leadership contests.[3] Paul Martin's government had its own initiatives including the appointment of Justice Gomery's Inquiry.

In this regard, the conception of accountability by both the Liberals and Conservatives endorsed by all the parties which currently hold seats in the House of Commons speaks of "tougher laws" and strict guidelines. Its scope is purely administrative, not political and its effect is to criminalize individuals for "wrongdoing." The deliberation on the criteria used to establish wrongdoing is rushed and uncertain and seems to be quite arbitrarily determined. In the opinion of the MLPC, the entire process and decisions taken as a result of this process undermine the underlying premises of the system of responsible government. The resultant incoherence is causing greater and greater problems for the political parties themselves which are controlling this process, to say nothing about the damage to the polity. As a result, far from resolving the problems of corruption and conflicts of interest, the interparty and intraparty fights are increasing along with corruption and conflicts of interest. The result is the deepening crisis of the party system of government, and increasing loss of confidence of Canadians in political parties, the Parliament and the democracy and unfettered imposition of secret agendas which are increasingly subordinating the Canadian economy to the United States of North American Monopolies and the Canadian state to the U.S. state and embroiling Canada in the U.S. imperialist striving for world domination.

UN Convention Against Corruption

Even though this legislation is said to be "anti-corruption" legislation and comply with Canada's obligations internationally to "fight corruption," its approach ignores a crucial element of that very international law regime enshrined in the Inter-American Convention against Corruption, adopted March 29, 1996 and signed by Canada and in the UN Convention against Corruption signed by Canada on May 21, 2005, but yet to be ratified.[4] Its pending ratification is one of the issues Stephen Harper is now using to demand that the Senate get on with passing the Accountability Act.

Article 13 of the UN Convention Against Corruption under the heading Participation of Society states:

"1. Each State party shall take appropriate measures, within its means and in accordance with fundamental principles of its domestic law, to promote the active participation of individuals and groups outside the public sector, such as civil society, non-governmental organizations and community-based organizations, in the prevention of and the fight against corruption and to raise public awareness regarding the existence, causes and gravity of and the threat posed by corruption. This participation should be strengthened by such measures as:

"(a) Enhancing the transparency of and promoting the contribution of the public to decision-making processes; ..."

In a paper Corruption Definitions and Concepts, Inge Amundsen identifies the main forms of corruption as bribery, embezzlement, fraud and extortion. She writes:

"The decisive role of the state is reflected in most definitions of corruption. Corruption is conventionally understood, and referred to, as the private wealth-seeking behaviour of someone who represents the state and the public authority. It is the misuse of public goods by public officials, for private gains. The working definition of the World Bank is that corruption is the abuse of public power for private benefit. Another widely used description is that corruption is a transaction between private and public sector actors through which collective goods are illegitimately converted into private-regarding payoffs. (Heidenheimer et al. 1993:6)"

Amundsen cites Mushtaq Kahn who defines corruption as "behaviour that deviates from the formal rules of conduct governing the actions of someone in a position of public authority because of private-regarding motives such as wealth, power or status. (Kahn 1996:12)"

Amundsen distinguishes between political corruption and bureaucratic corruption ("grand" v "petty"). Political corruption is when political decision-makers use the political power they are armed with to sustain their power, status and wealth. It is when policy formulation and legislation are tailored to benefit politicians and legislators.

She writes: "Political corruption has even more substantial political repercussions, because it affects the manner in which decisions are made. Political corruption implies the manipulation of political institutions  and the rules of procedure, and it consequently distorts the institutions of government. Political corruption is a deviation from the rational-legal values and principles of the modern state and leads to institutional decay. The basic problem of political corruption is the lack of political will to encounter the problem: the power-holders do not wish to change a system of which they are the main profiteers."[5]

Neither the Gomery Inquiry nor the Harper government deal with the "deviation from the rational-legal values and principles of the modern state" which has led and continues to lead "to institutional decay." In the opinion of the MLPC, because of this, the measures contained in the Accountability Act will exacerbate the slide into institutional decay, not stem it.

Gomery Inquiry

The Gomery Commission was established on February 19, 2004 by the Martin-led Liberal Cabinet. The scope of the inquiry was set as follows:

a) to investigate and report on questions raised, directly or indirectly...in the November 2003 Report of the Auditor General of Canada... with regard to the sponsorship program and advertising activities of the Government of Canada, including

i) the creation of the sponsorship program
ii) selection of communications and advertising agencies
iii) management of the program
iv) receipt and use of any funds or commissions disbursed
v) any other circumstances related to the program considered relevant to fulfilling the mandate

Speaking to the illusion making about the Gomery Inquiry, the MLPC wrote:

"... there is one key issue at the root of the sponsorship scandal - the party dominated system of representative democracy, the electoral laws designed to elect a political party and to disempower the people and their fanatic need for money to make it happen. Why a political party in Canada was allegedly involved in stealing funds from the public purse and funnelling them into its election campaign coffers is going to be completely detached from the issue of the political system in which masses of people are treated as mere voting-cattle. The issue is not going to be touched upon at all by the Gomery Inquiry or by the Public Accounts committee looking into the same scandal."[6]

The developments reveal that this central issue to the sponsorship scandal has indeed been completely overlooked/disregarded by the Gomery Commission of Inquiry and the government. In fact, neither the Gomery Inquiry nor the Harper government take up the issue of political accountability. The Gomery Inquiry identifies the problem of accountability in administration generally (defining responsibilities) and more specifically partisan interference in terms of the administration of programs by the public service and, to an extent, in the ability of Parliamentary committees to hold government accountable.

The problem of political interference/partisanship is attributed to certain individuals whose conduct is wrong. On this and the other issues identified, administrative measures are proposed to deal with the problem. The assumption is that, if implemented, they will restore accountability of government to parliament and parliament to society.

In the preamble to Restoring Accountability, Justice Gomery sketches the framework of accountability that the parliamentary system brings to the Canadian democracy.[7]

It goes like this:

The principle of the supremacy of Parliament establishes Parliament as the body that creates the laws that give powers to Ministers and the rest of the executive, and the body to which the executive must be accountable.

Parliament through statutes and budgetary processes, assigns powers and resources to the Government.

The government administers these powers and resources, while Parliament holds Government accountable for its stewardship.

Ministers and the Public Service form the executive branch of government. The executive branch derives its powers and its authority from Parliament and, in turn, is accountable to Parliament and, through Parliament, to the people of Canada.

The principle of ministerial responsibility identifies the members of Cabinet, collectively and individually, as the persons at the head of the executive branch who hold broad responsibility and exercise the power to govern.

The principle of rule of law provides an overarching framework that both enables and limits the actions of the Government.

Gomery says:

"Parliament is the central forum in which the Government is held directly to account for both policy and administration. Ministers are accountable collectively to Parliament for policy and for the Government's actions or failures to act, and they are ultimately accountable to the people of Canada through general elections."

"Parliament holds Government accountable in two ways. First it holds the Cabinet collectively accountable for its policies, for its responses to the challenges facing the nation and its stewardship of the public sector and the business of governing the nation. Second it holds the Government accountable for the way it has used the powers and resources that Parliament has granted it. This accountability applies to administration, not policy, and it must be directed to those who hold responsibility for administration."

Position of the MLPC

The MLPC thinks a fundamental problem with this rendering is that the conception of accountability is detached from where the sovereign power is vested and whose interests it protects. So long as the historic need to vest the sovereign power in the citizenry is not addressed, the problem of accountability cannot be sorted out.

In A Power to Share, published in 1993, MLPC National Leader Hardial Bains discussed among other things, how the problem of accountability poses itself within the Canadian system of government.

"... the problem is that under the circumstances in which people are deprived of sovereign power and of a mechanism through which to exercise it, they are not able to freely choose who governs on their behalf. Political parties have virtually exclusive jurisdiction over this matter.

(...)

"In fact, there is no mechanism to make the elected representatives or the government accountable to the electorate. The only recourse provided to the citizenry is to vote an unpopular government out of office at the next election. It is interesting that both transparency and accountability serve their purpose when they divert attention from the fact that it is in all cases the government which commands the process. They are merely part of the tinsel and tassels with which the executive power wraps itself to cover up the fact that it is the sole decision-making power.

"All of these means are used to ensure that the electorate is deprived of its right to participate in governing society.

(...)

"These jurisdictions are getting increasingly transformed into absolute powers through the reforms which are being enacted. Those with access to political power still need a method to sort out the contradictions in their own ranks and keep the people out of government. The word democracy has come to mean using democratic forms to achieve what are actually undemocratic ends. The democratic form is becoming a mere remnant of democracy, and it is increasingly becoming synonymous with the set of laws which sanction the rule of political elites. This is justified by evoking various terms, including precedent, traditions, evolving institutions, democracy as we know it and various others.

"The character of supreme power and its origins is not separate from the character of the government and the interests it serves. The two are inter-related. The political process or political system facilitates the wishes of the supreme power. If the political process remains the same and if the only changes concern the extension of the franchise, the manner of counting votes and the reform of parliamentary procedures, supreme power will continue to remain alienated from the citizenry."[8]

On the basis of this analysis, the MLPC has adopted the slogan For Us, Accountability Begins at Home. At its centre is the recognition that when society is being held back and every avenue to solving its problems is obstructed, the working class and people take up their own social responsibility to change the situation.

Today, as the anti-social offensive and the drive to embroil Canada in the aggressive wars led by U.S. imperialism are stepped up, the problem that the people cannot hold the government to account becomes increasingly evident and urgent. So long as Canadians do not participate in setting government agendas and are, on the contrary, at the mercy of whatever self-serving agendas the government, political parties and the media set, the problem of accountability will continue to plague the polity. Thus, the most important question which has emerged is who wields political power -- where the decision making power is vested. While the question of power involves a myriad of elements, the cutting edge of the people's struggle for empowerment is to build the organizations through which they can put themselves into positions of influence by taking stands that defend the rights of the people and, on this basis, open society's door to progress and advance the cause of peace and human rights. This is the only way people can avert the dangers which those in power today are preparing. The program of the MLPC is to bring forward worker politicians and people's representatives to elect and be elected to form a Workers' Opposition in the Parliament. A Workers' Opposition can then go further and create an antiwar government which responds to the needs of the people at home and abroad.

Notes

1. See "Bill C-2, the Federal Accountability Act: Brief of the Marxist-Leninist Party of Canada to the Senate Standing Committee on Legal and Constitutional Affairs, September 7, 2006," TML Daily, September 8, 2006, No. 128.
2. See "39th General Election: Significance of the Election Results: Interview with Sandra L. Smith, Leader, Marxist-Leninist Party of Canada," TML Daily, January 30, 2006, No. 4
3. See "Brief of the Marxist-Leninist Party of Canada on Bill C-24," An Act to amend the Canada Elections Act and the Income Tax Act (political financing), submitted to the Standing Committee on Procedure and House Affairs on April 30, 2003, TML Daily, June 10, 2003, No. 118.
4. There are 140 Signatories to the UN Convention Against Corruption, 61 of whom have ratified. Cuba signed December 5, 2005. China and Vietnam have signed and ratified it, renouncing Article 66 (2) which provides for complaints of one state against another, with referral after six months to the International Court for resolution.
5. Amundsen, Inge, "Corruption: Definitions and Concepts, Draft," January 17, 2000, Chr Michelsen Institute Development Studies and Human Rights.
6. See "Illusion Making About the Gomery Inquiry," mlpc.ca, August 16, 2005, http://www.mlpc.ca/Articles/gomery1.html.
7. Gomery Commission of Inquiry into the Sponsorship Program and Advertising Activities, Part II: Restoring Accountability: Recommendations, 2006.
8. Bains, Hardial, A Power to Share: A Modern Definition of the Political Process and A Case for its Democratic Renewal, (1993), pp. 32-34.

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