The power of recall equals responsible power or empowers irresponsibility?

July 30, 2013

Now here is an interesting parallel between pending legislative initiatives within the UK and Ukraine.

The power of recall  – as in the power to recall an MP and enforce new elections at the initiative of the constituency –  although the Ukrainian proposal goes beyond MPs, including appointed officials who are not democratically put in place, but could be displaced using a democratic instrument.

Without beating around the bush, I am naturally in favour of the power of a constituency to recall its MP if sufficient constituency members feel that the MP is not acting in their best interests or representing them as they feel they should be.  It also goes without saying that any MP caught breaking the law – in a manner that does not result in their incarceration – should also subjected to a mandatory recall to allow voters to reelect them or not.

Whether the 10% threshold for recall as muted in the UK debate is sufficiently high is a fair question.  Given the low voter turnout in the UK at elections, many MPs represent their constituencies with a very low mandate from their constituency when subtracting those who voted for others or who did not vote at all.

Perhaps given that fact, 10% is a sufficiently high threshold as it would be anybody’s guess how many would sign a petition for a recall if they can’t be bothered to vote in the first instance.  However, there could very well be more interest in recalling an MP than actually going to vote one into office – considering the contempt in which politicians are often held.

How high the Ukrainian bar?

The UK proposal, stops there however – whilst the Ukrainian proposal extends to judges and other appointed figures.

Here matters are not necessarily so clear cut when it comes to removal of such appointed people because of the demand of any constituents.

If as the opposition propose, a genuinely independent judiciary does come about through the creation of what most of those in the “western world” would equate with a Bar Association – then that professional body should be the first and foremost institution responsible for its own internal discipline  – with accountability and oversight via other horizontal institutions.

Is there a difference between subjecting the judiciary to political manipulation at one end of the “vertical” and the populist reactionism of the public at the other?

Should constituents have the right to interfere with a genuinely independent judicial branch any more than the political class?  Does not the judiciary have the solemn duty to enforce the rule of law without regard to how politicians or public may decry or delight in any verdict?

If politicians and/or the public decry a verdict, there are of course dedicated channels for appeal.  However, it may be that a verdict is reached due to the prosecution not making the case sufficiently well – or the defence was a disaster – or simply that the law was written in such a way, the judge was left with no choice but to deliver the verdict they gave in accordance to the law as written.

Caution is required when making the independent and internally appointed horizontal (the ultimate aim for Ukrainian institutions), subject to the whim of the vertical (at either end) – as the horizontal is there to keep both ends of the vertical within the rules.

Naturally I fully understand the thinking behind this proposal and it may very well accomplish some short term goals with regard to making the judiciary and appointed officials more compliant with what they should be doing – rather than what they are currently doing – but laws designed to achieve short term goals tend to outlive their usefulness, yet remain on the statute books, often with consequences that are counterproductive to their original intent many years from now.

Is it perhaps better to concentrate the mind on just how to make the horizontal institutions free from political appointments and alliances in the first place?

How to create judicial and civil service institutions that are entirely A-political, truly independent, self-regulating and accountable to each other – whilst transparent to both politicians and public – would seem to be the core issue.

Legal proposals to “manage” (in a way that has a reasonable chance of being hit and miss by way of public responsiveness) the consequences of not dealing with that core issue is perhaps energy misspent?

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