Will the PSC Act Amendments take us back to the 1990s?
In 1998, the aim of the Comprehensive Reform Program was:
“strengthening public institutions and enacting the basic laws to establish the framework of governance; restructuring of the Public Service to improve its effectiveness and efficiency; strengthening the institution of Parliament; strengthening of the legal sector; improving performance of the economy and raising standard of living ” .
Do we no longer wish to aspire to these aims?
Parliament by a majority of 28 members voted this week in principle the amendments of the Public Service Act amendments which would destroy one of the major improvements brought by the Comprehensive Reform Program, namely the depoliticizing of the Ministerial top advisers.
The main amendments concern Articles 17 and Article 18 of the 1998 PSC Act. This change means the DGs would no longer be appointed by the Public Service Commission but by a politician, the Minister in charge at the time. The conditions of the DGs employment would now be contracted and negotiated with the Minister, just like a consultant or a political secretary. The independence of the DGs would come to an end.
In 1998, Vanuatu faced constant changes of Government, political instability, Ministerial offices were entirely politicized and corruption was rife. This was repeatedly set out in more than 67 public reports by the Ombudsman from 1994 to 1999.
Are we now about to go back to that time?
Article 57. (1)of the Constitution states that:
Public servants owe their allegiance to the Constitution and to the people of Vanuatu.
Now DGs will owe their allegiance to the Ministers. A major safeguard of the interest of the people has been eliminated.
Their lack of security of tenure, until now protected by the Public Service Act, will ensure that they will in effect be the servants of the sitting Minster.
Readers of Vanuatu newspapers are well aware of the constant abuses of power that are reported with depressing regularity.Instances of alleged corruption are multiplying with little or nosign of any action being taken by the competent authorities (Government , Ombudsman, Police, Prosecution).
• Wrongful and tainted land dealings by Ministers (Marina Motel sale, leases granted to political friends, new leases granted by Ministers without consultation with the disputing land owners).
• The auditor report on the Vanuatu Beijing Embassy rife with misappropriation, sale of diplomatic passports against cash for Parliament and others, VT 190 million for the granting of visas to Chinese citizens disappearing.
• Sale of ordinary Vanuatu passports and diplomatic passports
• Inefficiency of the Public Prosecutor Office and the Judiciary allowing the return of thuggery by a Minister and his henchmen against journalists denouncing corruption, going almost unpunished by a system which worryingly gives the impression that it is protecting the leaders from the full consequences of their actions.
• Silence from the Office of the Ombudsman, silent watchdog with no annual reports and very few reports on the top corruption working with frightful delays (sometimes 10 years between the time of the complaint and the issuing of a public report)
• Courts not giving judgments and decision in numerous cases and overwhelmed by work, thereby slowing down the whole process of Justice.
• Politics plaguing Air Vanuatu with irrational and political decisions to change the CEO, failure by former staff to be forced to pay back large amounts of money taken for private use, signing contracts as an exchange of favours and other numerous financial abuses.
• Irrational decisions like the recognition of the Republic of Abkhazia by the Vanuatu Government in breach of all its principles and policies.
• Inappropriate attempts to interfere politically in the VNPF.
• Immigration Officers detaining residents without Court Orders.
• The Municipalities falling apart under the weight of massive debt and mismanagement. A similar situation occurring with the Provincial Governments as seen in the recent audit of the Provinces.
Allegations of Environment Law breaches not being tackled.
• Police not bringing to Court accused or guilty persons as ordered by the Court thereby allowing them to go free
• Coroner’s Report into a dearth in custody not implemented and no consequences for those involved despite the recommendations of sanctions and improvements
• Lack of transparency: Auditors reports not being accessible to the general public.
The list of lamentable breaches of law and procedure is long as regular readers only need to open their daily newspaper to be told about yet one more scandal.
The circumstances that have led to the current Bill are quite similar to those in 1998.
When a Minister changed in 1998, there was no one in the Public Service and the Ministry to ensure the stability and continuity of the files and the policies in the Ministry. Offices were emptied of publicly owned equipment and furniture and often ransacked, as if this was a normal thing to do in a change of Government or Ministerial reshuffle. And there would be no one to brief the incoming Minister.
Furthermore political appointees were not and are not chosen on merit but on their allegiances to their Minister and their party, and it was widely felt in 1998 that there was a need for a strong, qualified and knowledgeable personnel within the Ministry.
However from the beginning many politicians have resented having such a person in their team and actions have been taken along the years to diminish their impact and influence.
The first step taken a few years ago was to remove the legal obligation the DGs had in their DCO meeting to have them review what was submitted to the Council of Ministers.
But that was not sufficient, the DGs in their capacity as Public Servants had to be removed as public servants and transformed into servants of the Minister.
Article 17 states: “17. Application to Public Service. All appointments, promotions, disciplinary matters, and terminations in respect of the Public Service must be made in accordance with this Act.”
Three new paragraphs have been added, one changing the content of the previous and being: “17A Appointment of a director-general
(1) The Minister on the recommendation of the Commission is to appoint a person to be a director-general under a contract of employment for a period of 4 years and the person may be reappointed only once.
(2) The remuneration and allowances of a director-general is to be determined by the Minister after consultation with the Commission.
(3) The terms and conditions of appointment of a director-general are to be set out in the contract made between the Minister and the director-general.”
The change allows the Minister to appoint the Director General and change totally the status of the Director General as the Constitution stipulates:
“60. Functions of Public Service Commission
(1) The Public Service Commission shall be responsible for the appointment and promotion of public servants, and the selection of those to undergo training courses in Vanuatu or overseas.”
The Director-Generals are now de facto political appointees. It is now just the creation of a new level of political appointee, the highest. Even political appointees’ salaries and conditions are determined by an Act and are uniform and not negotiated by Ministers.
Moreover, according to the new clause 17.2, the Minister will define the remuneration and allowances and nothing is said in the amendment if this will follow the Government Revenue Tribunal or will be determined at the Minister’s sole discretion.
The whole amendment opens a huge door to malpractice, corruption and nepotism.
While much has been done since 1998 to improve economic performance and introduce new laws and agreements to have new international conventions (Corruption, Torture), nothing has been done to monitor or improve the implementation of the Ombudsman and Leadership Code Act and in essence there have been no attempts at improvement in the ethics of the public service.
It has been obvious that over at least the last two years politicians and Ministers have been frustrated by the fact that they have to respect rules and regulations set and that they cannot do whatever they want, even though many have tried and some have succeeded in their wrongdoing.
This frustration has been evidenced by the multiplication of incidents between Ministers and DGs resulting in a strange chassé-croisé: a Minister suspends a DG because he is “not happy” with his DG and the PSC then re-instates the DG or places him/her in another Ministry, even if only to avoid any physical confrontation.
The Prime Minister was probably right in stating that many Ministers cannot “work” with their DGs but it would be more productive to investigate this situation and find remedies rather than to return to a system of more centralized power that has already failed once before.
It is understandable why many Ministers cannot work with their DGs. The DGs stand in their road as an obstacle preventing them from doing illegal acts. DGs performing their role correctly stand as a reminder to Ministers of what rules laws apply in any given situation.
If both the Minister and the DG understand their respective role and the scope of their mandate, if the Minister receives relevant training in public administration and knows the rules and regulations of Vanuatu’s public administration, then it could be easier for the Minister to “work” with the DG.
Another solution could also to review the actual process used to prepare policies. MP Harry Iauko was right when he explained that when a Minister takes his position he has a program in mind and that he wants to implement this program.
What happened often is that when the program is not in or is against the current policy, then a conflict can occur between the DG who is responsible to implement the policy and the political level who wants to hurry to implement its own policy.
But this still highlights the lack of training of our political leaders and their lack of involvement and understanding in the preparation of national policies.
Essentially this bill says let’s appoint them (the DGs), let’s be optimistic in appointing them for four years which is our normal MP’s mandate without Motion of Non-Confidences and reshuffles, and more importantly let’s pay them well for apparently good reason because after all they will be most of the time from our same political party!
Despite reassuring statements from the Government made during the Parliament session on Monday and Tuesday, the risk that we are now taking is to re-politicize the important functions of the Director-General and put in jeopardy all the efforts made since 1998 to have a strong independent presence in the Ministries.
While we welcome the recognition made by the Prime Minister that bribery is a common practice within public servants, the Amendment proposed to the PSC Act is not the solution and will only encourage more corruption, if for no other reason than removing a senior level of independence necessary to help stop abuses that have plagued the country for decades.