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Impartial public service advice for governments

An impartial, efficient and effective public service is an important aspect of any country’s functioning.

The role of the public service in a democracy
Government departments are set up to ensure that policies decided by the government of the day are professionally developed, implemented, and assessed.   Through experience these departments become expert in their field and are able to offer advice to government, as well as take the government’s instructions.   This relationship between the government and the public sector thus becomes important and subtle, but whether an individual is a member of parliament or a public servant the common goals are to uphold the rule of law, respect the rights of individuals, and promote the common interests of society as a whole.

In a Parliamentary Democracy, citizens have the right and the need to expect their governments to deliver policies and services – and to elect and reject Parliamentarians who in turn appoint and dismiss ministers.  It is implicit that Ministers and the government as a whole have a mandate established by the people at general elections, while the public servant – who is not elected – assists the Minister implement the government’s program.

Ministers need a professional, impartial public service, represented by a chief executive, willing and able to give options and advice from which ministers and their cabinet colleagues can make choices.  In this relationship the public servant is the “agent” of the Minister and required to faithfully implement Ministerial decisions.  Because establishing this impartiality and effectiveness and identifying the common interest is not easy, many countries identify basic principles and establish both laws and codes of conduct as guidance.

The first principle is often that public servants conduct their activities with professionalism and integrity.  This requires public servants to be politically neutral, and to give their advice to government in a full, free, and frank manner.  This principle allows the government to have trust in its public servants – trust that programs identified by government are adequately scoped, and conducted.

At the same time, the public servant requires from government some guarantees that the provision of full, free, and frank advice will not jeopardize their livelihood.   This is achieved in various ways in different countries.  Firstly, the public servant should be employed by a state agency but not directly by the government.  It is important that conditions of employment be secure (presuming the competence of the public servant) in order to consolidate this relationship of trust.

Confidentiality is another element of trust between the government and the public servant.  In the formulation of options regarding difficult choices government has to make, a public servant may be placed in the difficult position of having to articulate options that he or she is personally opposed to: a professional response requires the setting aside of personal preferences, and giving full support to the government’s program.

Many governments have bound public servants to silence through “Official Secrets” legislation, which prohibits them from speaking publicly on virtually any subject.  In recent times, however, the trend has been to replace “Official Secrets” legislation with “Access to Information” (or “freedom or information”) legislation and with the establishment of procedures that public servants can use if they want to express a grievance. The advantage of these more “open” regimes of government information are that public servants will be less included to anonymous “whistle-blowing” activities, and at the same time the public servant knows that the public may at some point have access to records.

Public Servants and elections
At election time, most public servants continue to support the democratic processes of government in neutral roles. They may, for instance, be involved in electoral administration, or in clarifying the state’s finances or some other policy-related activity.  There are, too, public servants who wish to nominate as candidates for election, and this situation can be considered from a number of perspectives.  The main issue is how long a public servant can remain employed by the public sector during the campaign period, and under what conditions.

In one perspective, public servants should be discouraged from becoming politically active, and should be required to resign their position the moment they begin to campaign. Since public servants are required to be politically neutral at all times, the decision to stand as a candidate raises the prospect that he or she will stand either for or against the government of the day.  According to the first principles of public service integrity, this situation is undesirable.  An additional concern is that a public servant who has decided to stand as a candidate will use public resources – whether time, money, or other types of access, to promote their personal agenda. Clearly, this is not just, and indeed illegal.

There is another perspective, however, that focuses on the individual rights that public servants continue to hold irrespective of their employment.  Foremost amongst these is the right to participate in the democratic process without automatically losing one’s livelihood.   In some countries this is achieved by granting a public servant a period of unpaid leave to participate in activities during the electoral period such as standing as a candidate, or offering some other service to the political process.  If an individual fails to win a seat, he or she may resume employment having participated in the democratic process.

Yet another factor is to weigh the advantages and disadvantages of having public servants stand for election.  Since they are intimately familiar with how the public sector functions, and with the major public policy issues, it is obviously beneficial for to the parliament if some of its members have this background and expertise.  They may make a strong contribution to the country by making law, and not merely carrying it out, or they may make a contribution in oversight of the executive, which is one of parliament’s most essential activities.

Clearly, in considering the relationship between public servants and political candidature, several interests must be balanced: the individual rights of citizens in the political process, irrespective of their employment; and the collective rights of the population to a fully neutral public service.

The Case of Tonga
Tongans are not the only communities grappling with the balance between principles. Societies throughout the ages have had to consider what to do when one freedom has to be balanced against another freedom. In the first instance public servants own judgments, assisted by their and their colleague’s interpretation of the relevant code, law and convention can guide behavior.  If personal judgments do not guide appropriate behavior, employers have certain rights and obligations to form judgments, and if that is not the last word, grievance procedures can guide judgments. Interested parties may feel they need to take the matter to court to interpret the law, consider the conflict between particular laws, particular principles.  The matter could end up as yet another reform proposed by the Parliament, or even proposals to amend the Constitution. That is taking the matter a long way – when in fact public servants judgments, measured against the reasonable interest of the body of citizens, could handle the situation.

Tonga’s 2002 Act to Reform the Law relating to the Public service and to establish the Public service had anticipated some of the change in behavior some public servants thought to follow in the period following reform of the Parliamentary system. The Public Service Act 2002 was followed by the 2004 Code of Conduct for the Public Service. In 2006 the Public Service (Grievance and Dispute Procedures) Regulations came into force.  In 2010 further guidance and formal arrangements to guide behaviour further were considered by Cabinet for Parliament to consider.  Tonga’s 2010 Parliament was being asked to consider a Public Service Amendment Bill.  Draft work on the bill was an opportunity to reinforce the public service in the machinery of government. The current act provided that no public servant should participate in political activity without prior approval. Drafting can take account of advice Crown Law may give. Attempts to define “apolitical” leads to drafting that suggested Parliament might consider “apolitical means not involving in any political activities including not associating with any association that has a political mandate”.  Some drafting options tried to say public servants are required to be politically neutral.

Consideration of regulations on the behavior of public servants in pursuing their own Parliamentary ambitions, alignments with other people and policies needs to take account of Tongan Constitutional provisions for basic freedoms such as freedom of speech.  Different interests in the society, such as the Public Service Association, and non government organisations will have points of view on the appropriate guidelines.

Tonga and its neighbors are grappling with the consequences of operating, and reforming, their political systems. There may be lessons from some of the neighbours that may be shared, but in the end, it is the preference of the citizens of each country who need shape local laws and conventions.

Citizens have an interest in the policy options being fairly considered, in services being accessible and fairly provided. They can be aware laws and codes require public servants to carry out the decisions of government. Public servants and political parties are different. If public servants want to advocate for one line of policy, stand for Parliament.  Let the electors chose.

By Dr Graham Hassall, who commenced as Associate Professor, Public Policy and Administration, in the Victoria University of Wellington School of Government in 2010 after teaching at the University of the South Pacific 2004-2009, Landegg Academy in Switzerland 2000-2003, and the University of Melbourne 1990-2000 Email: graham.hassall@vuw.ac.nz