Real Accountability (72)

10 Feb 2020

Ms Sun Xueling
Blk 308B Punggol Walk
#01-364
Waterway Terraces 1
Singapore 822308

Dear Ms Sun,

Real Accountability
1. Extracts from an article at aeon.co:

Rules or citizens?
Ancient Athenian and Greek practices afford us insights into how and why to maintain real accountability in public life

What is anarchy? The word evokes lawlessness, a generalised disorder. But the root meaning of anarchia has nought to do with law or lawlessness. It is formed in classical Greek from an-archē, a negative or privative compound of the noun hē archē, among the meanings of which are ‘beginning, origin’; ‘first place or power, sovereignty’; and ‘magistracy, office’ – ideas connected by the power of initiating action. In anarchia, an authoritative leader, ruler or officeholder is absent. In classical Athens in particular, it became a designation for a particular vacancy: an absence of the officeholder called not only an archon (from the same root, of course), but the archon: the one archon out of nine in Athens (and some other city-states) who gave his name to the year in which he served. For Athenians did not keep track of their years by consecutive numeration, as we do, but rather named each year after the archon holding this office. What we call the year 403/02 BCE, for example, they knew as the year of Eucleides’ archonship.

The archons were the titular and most august of the 700-odd offices that were filled in democratic Athens every year. Most of these officeholders, including the archons, and an additional 500 members of the council, were chosen by lottery, though the Athenians imposed careful checks both before and after the lottery to eliminate those delinquent on their taxes or in other civic duties. A minority (about 100, mainly military) were chosen by election. All male citizens were eligible to participate in the proceedings of the Athenian assembly and to be put forward to serve on the council and on the popular juries, each of which played a vital role in Athenian power and government. For the most part, rather than being policymakers in their own right, the Athenian officeholders carried out broadly defined administrative roles. They did however enjoy the power to issue commands within their own domain and enforce them with fines and sometimes other punishments.

A vacancy in an archonship might mean that it had simply not been filled. But anarchia could stretch all the way to what we might call ‘expungement’. I have borrowed this term from the worst potential punishment that I learned to fear as an undergraduate at Harvard University. In that context, expungement means not simply being rusticated, sent down or expelled, but expunged from all matriculation records. When this happened in ancient Greece, anarchia served as a kind of non-name, erasing and replacing the name of an archon (and especially an eponymous one) who had been putatively installed, but who (we can infer) was judged not to be a real, valid or genuine officeholder. In some cases, this meant erasing the officeholder’s name from the public inscriptions of the calendar, with anarchia incised instead.

We find surviving inscriptions of anarchia incised in stone in the archon list of the northern Aegean polis of Thasos in the late 5th century, and in Athens some centuries later. The appearance of the anarchia inscriptions is especially dramatic for the later Athenians as it contrasts with their usual ‘practice’, at least in a later period, as the classicist Harriet Flower describes, ‘of publicly recording the names of traitors and other notorious offenders on stelai that were prominently displayed in the city’2 (whereas, in Rome at the time, unworthy citizens were more frequently condemned to damnatio memoriae or sanctions against being remembered as a citizen). Anarchia in this sense could become an index of what we today would call political legitimacy and illegitimacy, preserving the presence or absence of a valid officeholder at the core of anarchy, in a way that its common interpretation as lawlessness fails to capture.

The ways that Greeks and Romans thought of and practised accountability are important and worth our attention. The influential scholar Mogens Herman Hansen wrote that: ‘Athenian leaders were called to account more than any other such group in history.’ The claim points both to an Athenian distinctiveness and a common starting point of ‘calling to account’, an ideal that reverberates far beyond the classical world, especially in common-law regimes. The concept of accountability, two legal scholars have more recently reminded us, serves as the organising principle of administrative law. A recent Institute for Government report explains that, in the United Kingdom today, ‘accountability is about a relationship – between those responsible for something and those who have a role in passing judgment on how well that responsibility has been discharged’ – a formula that captures the same framework that applied in ancient Greece.

This Institute for Government report identifies oversight, regulation, inspection and scrutiny as the different forms of accountability. In ancient Greece, as opposed to modern bureaucracies, there was relatively little regulation or oversight: offices were defined with few rules or regulations. Officeholders were expected to simply get on with the job. No overarching civil service bureaucratic management structure existed to oversee them. Yet the ancient Greeks engaged in a tremendous amount of inspection and scrutiny about government and integrity in public life. They adopted mechanisms that made relationships of accountability – through active public scrutiny – alive and intensive. Accountability practices defined the end of every officeholder’s term, not only in Athens but also across a wide range of Greek cities. This was the practice not just in democratic governments but in oligarchies too. The Greeks referred to this intensive public performance review as εὔθυναι or euthunai (most often used in the plural, from the singular euthuna) which literally means the rendering of accounts.

Even officeholders who served on collective boards faced their euthunai individually. In Athens, as a rule, any citizen could bring forward a complaint to be investigated. So the accountability relationship was personal on both sides. Individuals were held personally accountable for their performance, never shielded by collective responsibility or bureaucratic hierarchy; and (at least in some democratic constitutions such as that of Athens) anyone in the citizen body could draw on their own experience or knowledge to lodge a complaint that brought real investigation. Athens stood out for not waiting until the end of an officeholder’s term to make inspection or scrutiny possible: as the historian Pierre Fröhlich noted in 2004: ‘Athens is the only city in which we know anything of procedures enabling sanctioning of a magistrate while in the course of his tenure.’

Through routes of accusations lodged with the assembly or council, which could occasion a judicial trial, Athenian officeholders could be held to account during their tenure. Ordinary citizens also had the ability to prosecute officeholders in court themselves. For Athenian officeholders, the stakes were high. Life did not continue as normal. As Jennifer Tolbert Roberts observes in Accountability in Athenian Government (1982): ‘Only when his [euthunai] were complete … was it legal for a man to set out on a journey, transfer his property to anyone else, be adopted into a different family, or even make a votive offering to a god.’ Quite simply, the property and freedom of public officials were seriously restricted until their accounts were settled.

Ancient Athenian and Greek practices allow us insights into how and why one should maintain real accountability in public life, rather than letting it devolve into mere theatre. In Athens, accountability procedures and the control of public office gave the people as a whole an important role in defining, revealing and judging the misuse of office. It helped them hold every official accountable for his use of his office. From this classical practice, we can see a way to revitalise the dysfunctional accountability regimes under which we are currently suffering.

‘New managerialist’ approaches to accountability insist on spelling out the details of accountability targets in advance (targets set by insulated management, for the most part). By contrast, Greek accountability procedures left the terms of success and failure more open, with few regulations spelling them out in advance, thus allowing for popular judgment to be authoritative, but also exercised through proper procedures. In Athens, this allowed, on the one hand, individual citizens to assert themselves in bringing whatever charges they thought were merited; on the other hand, it also gave any accused officials the formal opportunity to defend themselves in a trial. The right of officials to quick trial over any allegations was a safeguard against vigilantism or what would today be a ‘trial’ conducted in the media and with little to no opportunity for fairness.

These accountability procedures might be at once fairer and more effective than the ones we practise in many democracies today. Modern practices to ensure integrity in public office focus on setting targets and rules in advance. The Greeks left these open to the judgment of the citizen body, while also allowing officeholders to defend their judgments in court trials if challenged – giving them, at least in theory, a fair hearing, rather than trial by media frenzy (though sometimes these procedures were flouted in ways that could approximate modern forms of mass hysteria or ‘mob rule’). At the same time, in Athens, any citizen could lodge accusations, making the public nature of accountability more meaningful than it tends to be in modern bureaucratically shielded contexts. And, most importantly, every single officeholder was routinely subjected to meaningful inspection, with their accounts being actively considered at the end of their period of office to determine whether they had passed muster.

Yes, aspects of these Greek practices depended on the smaller size of their polities, though Athens – with a population at its 5th-century zenith of about 250,000 total, of whom about 60,000 were male citizens – was far from a society in which everyone knew everyone by name or reputation. Elements of these classical procedures nonetheless lend themselves to adoption in modern conditions. For example, citizens today could lodge accusations electronically for a panel of other citizens, selected by lottery (with checks built in), to scrutinise and raise in a public broadcast and recorded interview of every officeholder upon leaving office. Of course, such procedures could still be open to abuse and politicisation, as happened from time to time among the Athenians, especially in the case of orators, while generals were often held accountable for substantive military failures (or for a concocted proxy of financial malfeasance) rather than for misuses of office of the kind that we today would recognise. (This question is complicated by the fact that general Athenian trial practices were different from ours – the questions of being a good citizen, in good standing, and of the general spirit of the laws being treated as unquestionably relevant and often dispositive.)

These procedures to foster integrity in public office in Athens and other Greek cities were not perfect. But they were more meaningful than those of today, both for the officeholders and for the public holding them to account. That the procedures left open to public negotiation the purposes that officeholding was expected to pursue was a key detail. Integrity in office was neither a process of comporting with prewritten rules, nor was it a matter of private conscience; it was a dynamic act of public, and publicly negotiated, understanding and debate, with real consequences for officeholders.

2. Extracts from another article at aeon.co:

Project and system
There are two ways of seeing order in the world: as a spontaneous system or as an intentional project. Which way lies freedom?

‘Project’ imagines law as the product of authors who are free agents capable of acting with intention after some sort of deliberation. For the ‘project’ imagination, legislation is the paradigm of law. Meanwhile, ‘system’ imagines law as a well-ordered whole that develops immanently and spontaneously from within individual transactions. System is a relationship of parts to whole, and of whole to parts. For the systemic imagination, the common law is the paradigm. Judges decide individual cases relying on precedents – that is, relying on prior acts of the same sort that they are pursuing. Out of those countless individual decisions, a system of order emerges. That system has identifiable principles – legal norms – but those principles were not themselves the product of an intentional act. The common law of contract, for example, has a systematic order, but the idea of that order did not precede the fact of its appearance. In a project, the idea of order precedes the act; in a system, we discover the idea of order only after the act.

These two master narratives are as old as the West. The creation account in Genesis describes God’s project: free action of a subject capable of acting on final causes, deliberating, and judging his product. Like all projects, God’s takes time – six days – and is subject to an external, normative evaluation – it was ‘good’. Some things do not quite work out as planned – man, for instance – and require new interventions, such as Eve, to modify the original project. We account for the order of the world, on this view, by identifying the craftsman and explaining his intentions. We investigate his plan.

The systemic view can also be found in the Garden of Eden. Picture Adam and Eve, before the arrival of the Serpent, contemplating the well-ordered nature of the garden in which everything works harmoniously as parts of a single whole. They do not know God’s plan. For them, the entire universe has the order of a garden in which the parts seem naturally to support each other. Its goodness is not located in an external measure – rather, it is good because it is. Man’s role is only to name, not to make, this creation. Alexander Pope’s great work, ‘An Essay on Man’ (1733-34), returns to this idea of God’s system. The poem is a discourse on system in support of a theodicy: ‘One truth is clear, whatever is, is right.’ In a system, things cannot be other than they are.

In 1765, the traditional, common-law lawyer Sir William Blackstone said that the law has its origins in ‘time immemorial’. He was deploying a picture of system. The common law is no one’s project. It has an immanent order that emerges through the case law, just as economic laws emerge through individual transactions. When early British theorists responded that the origin of the common law must have been in ‘lost statutes’ – that is, legislative acts that have been lost to history – they were playing the role of creationists. They cannot imagine order absent a rational agent who puts that order into the world through a project. The American founders’ belief that law could be a project explains their skepticism about the common law and their commitment to writing a constitution. Revolution created a space for a new project of constitutional construction. Their aim was to make a constitution based on the best political theory of their day.

By the end of the century, constitutionalism, Christianity and civilisation coincide in the legal imaginary as the telos of history, that is, of the system realising itself. The task of jurisprudence, accordingly, is to discover those principles that structure a free society, not to create them. The role of legislation or of a written constitution, on the systemic view, is no more than that of removing pathologies that block the free actions of citizens. Projects of law, in other words, are now only remedial, just like a doctor’s interventions are designed to address pathologies that keep the body from realising its immanent principles of order – which we describe as ‘health’. Out of this systemic imagination comes a convergence of constitutionalism with laissez-faire capitalism.

Wherever there is a dominant discourse of system, a critical response will be framed as project, and vice versa. Thus, the legal realism of the 1920s and ’30s is the project-response to the systemic view of classical legal formalism that dominated both academy and bench at the turn of the century. The realists labelled the systemic ‘truths’ of those institutions ‘transcendental nonsense’. Formalism, they argued, offered only ideological constructions designed to divert attention from reality, which was nothing more than powerful interests pursuing their own projects. The realists called for a new law of projects in pursuit of the interests of the people, not those of the rich. These projects would be informed by the principles of real science, particularly the social sciences, rather than the phoney science of law. Out of this came the modern administrative state that works to inform government projects by scientific expertise.

3. Of the two articles above, the last paragraph in Item 1 is on real accountability and the fourth paragraph in Item 2 is a systemic narrative.

If the problem was not with any one or a few officers when it first began, then the problem would be systemic. Officers who replied to my queries over the years were not committed to resolving the problem. Regulation covering the situation was not called up and the problem never went to higher authority. If higher authority came to know, it would not be under their purview. There was nothing in the media except for indirect references by people who were concerned.

The problem began with officers facilitating the working of a trade in an HDB flat. It was corruption, notwithstanding to what extent, that a group of officers intended to suppress. Rules were not followed that included other mistakes made against me later. Until parliament takes up the various issues listed, it will remain unresolved.

After your request for background check with a government agency on 23 Oct 2019, you have not indicated whether you could bring up the matter in parliament.

You have yet to give due consideration to the wrongdoings summarised in my letters and emails.

Yours Sincerely,
hh

cc
Mr Lee Hsien Loong
Mr Heng Swee Keat
Mr Teo Chee Hean