Good governance

Good governance

Good governance describes the process of decision-making and the process by which decisions are implemented (or not implemented).

GOVERNANCE

Governance can be used in several contexts such as

  • corporate governance,

  • international governance,

  • national governance

  • and local governance.

Governance is the process of_

  • decision-making

  • and the process by which decisions are implemented,

An analysis of governance focuses on _

  • the formal

  • and informal actors

  • involved in decision-making

  • and implementing

Actors in governance_

Government is one of the actors in governance. Other actors involved in governance_

In rural areas,

for example, other actors may include_

  • influential land lords,

  • associations of peasant farmers,

  • cooperatives,

  • NGOs,

  • research institutes,

  • religious leaders,

  • finance institutions

  • political parties,

  • the military etc.

In urban areas_

At the national level, in addition to the above actors_

  • media,

  • lobbyists,

  • international donors,

  • multi-national corporations, etc.

may play a role in decision-making or in influencing the decision-making process.

All actors other than government and the military are grouped together as part of the “civil society.”

In some countries_

  • in addition to the civil society,

  • organized crime syndicates also influence decision-making,

  • particularly in urban areas and at the national level.

Similarly formal government structures are one means by which decisions are arrived at and implemented.

  • At the national level, informal decision-making structures,

  • such as “kitchen cabinets”

  • or informal advisors may exist.

  • In urban areas, organized crime syndicates such as

  • the “land Mafia” may influence decision-making. In some rural areas locally powerful families may make or influence decision-making.

Such, informal decision-making is often the result of corrupt practices or leads to corrupt practices. In other words Governance means_

  • public institutions conduct public affairs,

  • manage public resources,

  • and guarantee the realization of human rights.

Good governance accomplishes this in a manner

  • essentially free of abuse and corruption,

  • free of corruption,

  • and with due regard for the rule of law.

Characteristics of Good governance:

  1. participation,

  2. rule of law,

  3. transparency,

  4. responsiveness,

  5. consensus orientation,

  6. equity and inclusiveness,

  7. effectiveness and efficiency

  8. accountability.

These characteristics assure that:

  • corruption is minimized,

  • the views of minorities are taken into account and

  • that the voices of the most vulnerable in society are heard in decision-making.

  • It is also responsive to the present and future needs of society.

But the UNESCAP United Nations Economic and Social Commission for Asia and Pacific uses the following indicators_

  1. Voice and Accountability

  2. Political Stability and Absence of Violence

  3. Government Effectiveness

  4. Regulatory Quality

  5. Rule of Law

  6. Control of Corruption

Participation

  • By both men and women.

  • Participation could be either direct or through representatives

  • Freedom of association Freedom of expression

  • and an organized civil society.

Rule of law

  • Fair legal frameworks

  • that are enforced impartially.

  • Full protection of human rights, particularly those of minorities.

  • independent judiciary

  • and an impartial and incorruptible police force.

Transparency

  • Decisions taken and their enforcement are done in a manner that follows rules and regulations.

  • Information is freely available and directly accessible to those who will be affected by such decisions and their enforcement.

Responsiveness

Institutions and processes try to serve all stakeholders within a reasonable timeframe.

Consensus orientation

Need of mediation of _

  • the different interests in society

  • to reach a broad consensus in society

  • on what is in the best interest of the whole community

and how this can be achieved.

It also requires a long-term perspective

  • for sustainable human development

  • and how to achieve the goals of such development.

Equity and inclusiveness

Ensuring that _

  • all members of society feel that

  • they have a stake in it

  • and do not feel excluded from the mainstream.

  • This requires all groups,

  • and especially the most vulnerable

  • to have opportunities to maintain or improve their well being.

Effectiveness and efficiency

Processes and institutions

  • produce results that meet the needs of society

  • while making the best use of resources at their disposal.

  • It also means sustainable use of natural resources

  • and the protection of the environment.

  • This can only result from an understanding of the historical, cultural and social contexts of a given society or community.

Accountability

  1. Governmental institutions

  2. as well as the private sector

  3. and civil society organizations

must be accountable to the public and to their institutional stakeholders.

A basic practical example of good governance would be

  • where a member of a committee,

  • with a vested interest in a topic being discussed at committee,

  • would absent themselves from the discussion

  • and not attempt to exert influence.

  • See also Ethics in Public Office and Due Diligence.

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Figure 2: Characteristics of good governance

CONCLUSION

From the above discussion it should be clear that good governance

is an ideal which is difficult to achieve in its totality.

Very few countries and societies have come close to achieving good governance in its totality.

However, to ensure sustainable human development, actions must be taken to work towards this ideal with the aim of making it a reality. http://www.institutionalreform.org/

Corruption

Corruption is the use of public resources for private gain –

a betrayal of the public confidence invested in individuals with access to public resources.

Corrupt practices are found in_

  • all branches of government,

  • in business,

  • and even within civil society.

The broader consequences are

  • a slowing down,

  • or even reversal,

of development goals, particularly in countries that are most vulnerable to economic downturns and political upheaval.

Within any given sphere

  • e.g., legislative,

  • economic,

  • judicial),

Corruption is largely the outcome of_

  • a breakdown in legitimate

  • or just rules and practices (institutions),

  • leading to unfair or arbitrary institutions

NST Online  2007/12/05

Tolerance aids good governance

 

KUALA LUMPUR: Tolerance is a vital element for Asean countries to have

  1. good governance,

  2. practise democracy

  3. and defend human rights.

Asean Eminent Persons Group chairman Tun Musa Hitam said if Asean was not tolerant, democracy could not work and freedom would have no meaning.

He said this after delivering his keynote address at a two-day colloquium on

“Good Governance, Rule of Law and Human Rights — The Way Forward for Asean”

jointly organised by the Asean Inter-Parliamentary Caucus for Good Governance and Working Group for an Asean Human Rights Mechanism.

The former deputy prime minister said Asean governments must be positive in getting feedback and criticism on any issue and use them to improve the countries’ leadership and society.

In his speech, Musa said he preferred the phrase “credibility of the judiciary” than “an independent judiciary”.

“Credible means independent enough to make own decisions, not because of monetary, political or psychological pressures.”

The following is taken from the  old ASIA WEEK site_

What Makes Good Governance?
 

Rule of law Legal frameworks that are both fair and fairly enforced

Transparency A free flow of information so that the members of the public can understand and monitor the institutions and processes affecting their lives

Responsiveness Serving the interest of all stakeholders

Consensus Mediating different aspirations to reach broad agreement in the best interest of the community

Equity Opportunity for all men and women to improve their well-being

Effectiveness and efficiency Meeting needs through the best use of resources

Accountability Decision-makers (in government, private sector and citizens groups) must answer to the public as well as to their own organizations

Strategic vision A long-term perspective on what is needed for society to grow

Good governance

What is good governance?

Governance is the process whereby public institutions conduct public affairs, manage public resources, and guarantee the realization of human rights. Good governance accomplishes this in a manner essentially free of abuse and corruption, and with due regard for the rule of law.
read more>>

 

Good governance at the national level

There is a wealth of UN human rights standards of direct relevance and applicability to questions of good governance.
read more>>

Good governance at the international level

In a globalizing world, national and international governance are inextricably linked. International institutions of governance will be in a better position to respond to the needs of the developing world once national institutions meet the test of good governance.
read more>>

OHCHR and good governance

As mandated by the General Assembly, OHCHR is the UN’s system-wide focal point for human rights, democracy and the rule of law. Under the Secretary-General’s reform programme launched in 1997, OHCHR has also been charged with facilitating the mainstreaming of human rights in United Nations development programming.
read more>>

Assistance for good governance

In 2000, policy measures, core elements and areas of programmatic collaboration for the United Nations system were established.
read more>>

OHCHR

http://www.ohchr.org/EN/Pages/WelcomePage.aspx

RULE OF LAW Limits the Government’s legal authorities on citizens

RULE OF LAW

Limits the Government’s

legal authorities on citizens     

 

Every official_

  1. from the Prime Minister

  2. or Minister

  3. down to a police officer

  4. or a income-tax officer,

  5. or any government officer

  6. or a peon

  •  
    • is under the same responsibility
    • for every act done
    • without legal justification
    • as any other citizen.

All the officials_

A. From the appointed government officials

B. to elected politicians, alike

C. and all subordinates,

(a) though carrying out the commands of their official superiors

(b) i.e. supposedly or could claim as done or act during performing their official duty

(b) are as responsible for any act which the law does not authorize  

i. as is any private

ii. and unofficial person.

 And they all must be …

i. brought before the courts,

ii. and made,

iii. in their personal capacity,

iv. liable to punishment, or

v. to the payment of damages,

vi. for acts done in their official character

vii. but in excess of their lawful authority.  

— Law of the Constitution (London: MacMillan, 9th ed., 1950), 194.

Another definition can be found at Halsbury’s Laws of England, Vol: Constitutional Law and Human Rights, paragraph 6

 The legal basis of government

Basic principle of legality

( referred to as the rule of law) 

This may be expressed as a number of propositions, as described below.

(1) The existence or non-existence of a power or duty is a matter of law and not of fact,

and so must be determined by reference either to the nature of the legal personality of the body in question and the capacities that go with it, or to some enactment or reported case.  

                 i.    Many public bodies are incorporated by statute and so statutory provisions will define and limit their legal capacities.

                 ii.  Individuals who are public office-holders have the capacities

       that go with the legal personality that they have as natural persons.

                iii.    The Government or Crown is a corporation sole or aggregate and so has general legal capacity, including (subject to some statutory limitations and limitations imposed by European law) the capacity to enter into contracts and to own and dispose of property.

 iv. The fact of a continued undisputed exercise of a power by a public body is immaterial. 

(2) The argument of state necessity is not sufficient to establish the existence of a power or duty  

i. which would entitle a public body to act in a way that interferes with the rights or liberties of individuals.

 ii.  However, the common law does recognize that

in case of extreme urgency,

when the ordinary machinery of the state cannot function,  there is a justification for the doing of acts needed to restore the regular functioning of the machinery of government. 

(3) The doctrine that the existence or non-existence of a power or duty

  • is a matter of law,

  • it should be possible for the courts to determine

 1. either or not a particular power or duty exists,  

2. define its ambit

3. provide an effective remedy for unlawful action.

4. The independence of the judiciary is essential to the principle of legality.

5. The right of access to the courts can be excluded by statute, but this is not often done in express terms.

6. A person whose civil or political rights and freedoms as guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms (the European Convention on Human Rights) have been infringed is entitled under the Convention to an effective right of access to the courts and an effective national remedy.

On the other hand_

  • Powers are often given to bodies other than the ordinary courts,

  • To decide questions of law without appeal to the ordinary courts,

  • And sometimes in such terms that their freedom from appellate jurisdiction extends to their findings of fact or law

  • on which the existence of their powers depends.

(4) Since the principal elements

  • of the structure of the machinery of government,

  • and the powers

  • and duties

  • which belong to its several parts,

    •  
      • are defined by law,

      • its form and course can be altered only by a change of law.  

From the British Laws,

now we look at the father of all the democracies,

American law.

John Adams drafted for the constitution of the Commonwealth of Massachusetts,

The principle of separation of powers: 

In the government_

1. The legislative department shall never exercise the executive and judicial powers or either of them:

2. The executive shall never exercise the legislative and judicial powers, or either of them:

3. The judicial shall never exercise the legislative and executive powers, or either of them:

 To the end it may be a government of laws and not of men. 

— Massachusetts Constitution, Part The First, art. XXX (1780).

The last phrase,

“To the end it may be a government of laws and not of men,” has been quoted with approval by the U.S. Supreme Court and every state supreme court in the United States.

A similar concept is found in Common Sense (1776) by Thomas Paine:

. . . The world may know, that so far as we approve of monarchy,

1. That in America THE LAW IS KING.

2. For as in absolute governments the King is law,

3. So in free countries the law OUGHT to be King; and there ought to be no other.

The concept “Rule of Law” is generally associated with several other concepts, such as:

1. Nullum crimen, nulla poena sine praevia lege poenali – No ex post facto laws 

2. Presumption of innocence

All individuals are “innocent until proven otherwise” 

3. Double jeopardy

Individuals may only be punished once for every specific crime committed.  

 4. Retrials may or may not be permitted on the grounds of new evidence.

See also res judicata.

 5. Legal equality

All individuals are given the same rights

without distinction to their social stature, religion, political opinions, etc.

 6. That is, as Montesquieu would have it, “law should be like death, which spares no one.” 

7. Habeas corpus – in full habeas corpus ad subjiciendum, a Latin term meaning “you must have the body to be subjected (to examination)”.

o A person who is arrested has the right to be told what crimes he or she is accused of. 

o And to request that his or her custody be reviewed by judicial authority.  

o Persons unlawfully imprisoned have to be freed. 

11. The concept of “Rule of Law” per se says nothing of the “Justness” of the laws themselves, but simply how the legal system upholds the law.

12. As a consequence of this, a very undemocratic nation or one without respect for human rights can exist with or without a “rule of law”, a situation which many argue is applicable to several modern dictatorships.

13. However, the “Rule of Law” is considered a pre-requisite for democracy, and as such, has served as_

14. A common basis for human rights discourse between countries such as the People’s Republic of China and the West.

 The Rule of Law is an ancient ideal
first posited by Aristotle
as a system of rules inherent in the natural order.

1. The concept of impartial rule of law is found in the Chinese political philosophy of legalism.

2. Although Chinese emperors were not subject to law, in practice they found it necessary to act according to regular procedures for reasons of statecraft.

3. In the Anglo-American legal tradition rule of law has been seen as

  • a guard against despotism

  • and as enforcing limitations on the power of the government.

4. In the authoritarian and totalitarian states the discourse around rule of law centers on the notion that laws ultimately enhance the power of the state and the nation, which is why the authoritarian and totalitarian states government adopts the principle of rule by law rather than rule of law.

5. Rule of Law is opposed by authoritarian and totalitarian states.

For much of human history,

Rulers and Law were synonymous –

Law was simply the will of the ruler. 

1. A first step away from such tyranny was the notion of rule by law, including the notion that even a ruler is under the law.

2. Democracies went further by establishing the Rule of Law.

3. Although no society or government system is problem-free,

  • Rule of Law protects fundamental political, social, and economic rights

  • and reminds us that tyranny and lawlessness are not the only alternatives.

4. Rule of law means that_

  • no individual,

  • president

  • or private citizen,

stands above law.

5. Democratic governments exercise authority_

  • by way of law

  • and are themselves subject to law’s constraints.

6. Laws should express the will of the people,

not the whims of _

  • kings,

  • dictators,

  • military officials,

  • religious leaders,

  • or self-appointed political parties.

7. Citizens in democracies are willing to obey the laws of their society, then, because they are submitting to their own rules and regulations.

8. Justice is best achieved when the laws are established by the very people who must obey them.

9. Under the Rule of Law_

  • a system of strong,

  • independent courts

  • should have the power and authority,

  • resources,

  • and the prestige

to hold government officials, even top leaders, accountable to the nation’s laws and regulations.

10. For this reason, judges should be_

  • well trained,

  • professional,

  • independent,

  • and impartial.

11. To serve their necessary role in the legal and political system, judges must be committed to the principles of democracy.

12. The laws of a democracy may have many sources:

  • written constitutions;

  • statutes and regulations;

  • religious and ethical teachings;

  • and cultural traditions and practices.

13. Regardless of origin the law should enshrine certain provisions to protect the rights and freedoms of citizens:

14. Under the requirement of equal protection under the law, the law may not be uniquely applicable to any single individual or group.

15. Citizens must be secure from_

  • arbitrary arrest

  • and unreasonable search of their homes

  • or the seizure of their personal property.

16. Citizens charged with crimes are_

  • entitled to a speedy and public trial,

  • along with the opportunity to confront

  • and question their accusers.

17. If convicted they may not be subjected to cruel or unusual punishment.

18. Citizens cannot be forced to testify against themselves.

19. This principle protects citizens from_

  • coercion,

  • abuse,

  • or torture

  • and greatly reduces the temptation of police to employ such measures.

In the Nazi Germany,  the government possesses the inherent authority to act purely on its own volition and without being subject to any checks or limitations.

Dr. Cooray wrote, The Australian Achievement: From Bondage To Freedom:

“All persons_

  1. individuals,

  2. institutions

  3. and government are subject to law.

Supremacy of the law is a fundamental concept in the western democratic order. The rule of law requires both citizens and governments to be subject to known and standing laws. The supremacy of law also requires generality in the law. This principle is a further development of the principle of equality before the law. Laws should not be made in respect of particular persons.

As Dicey postulated, the rule of law-

  • presupposes the absence of wide discretionary authority in the rulers,

  • so that they cannot make their own laws

  • but must govern according to the established laws.

Those laws ought not to be too easily changeable.

Stable laws are a prerequisite of the_

  •  certainty and confidence

  • which form an essential part of individual freedom and security.

Therefore, laws ought to be rooted in moral principles, which cannot be achieved if they are framed in too detailed a manner.

The idea of the supremacy of law requires a definition of law (to which the above principles may go some way).

This must include a distinction between_

  • law

  • and executive administration

  • and prerogative decree.

 A failure to maintain the formal differences between these things must lead to_

  • a conception of law as nothing more than authorization for power,

  • rather than the guarantee of liberty, equally to all.

The rule of law ensures that_

  • individuals have a secure area of autonomy
  • and have settled expectations by having their rights and duties pre-established
  • and enforced by law.”