Arbitrary exercise of power

The arbitrary exercise of power comes in many forms. It is not always easy to spot, especially when it occurs in formally democratic societies and out of public view.

Martin Krygier, the Australian scholar who has studied the rule of law for many years, identifies three general ways in which power may be exercised arbitrarily. (See his “The Rule of Law: Pasts, Presents, and Two Possible Futures”, 2016.) The first is when power holders cannot be held accountable, and there are no clear limits to how they may use power. Second, power is exercised arbitrarily when those who are subject to power cannot figure out whether their actions will meet the approval of those who wield power. Third, the exercise of arbitrary power may occur when the input, views or interests of those at the receiving end are not taken into account.

It is this third aspect of arbitrary power I wish to discuss. Here are two recent examples in Nova Scotia where it appears power was exercised arbitrarily.

In Kings County, after extensive public consultation, a new Municipal Planning Strategy (MPS) was drafted by the planning staff. In turn, this document was subject to detailed feedback by groups and individual citizens. Under the prior administration, staff drafted a second version of the MPS. This second draft failed to take into account much of the initial public input and ignored detailed feedback on the first draft.

To its credit, the province spent a great deal of time (and, I suspect, money) seeking public input in order to draft accessibility legislation. The draft law, Bill 59, was generally panned by those whom would be most directly affected by the law. Only through the hard work of the Bill 59 Community Alliance, an example of monitory democracy, was the lawmaking process slowed down, and further public legislative hearings held.

What do these two examples have in common? There occurred a disconnect between the comprehensive and detailed public input provided and the behind the scenes work of staff who drafted the legislation. Who was responsible for the disconnect may be difficult to figure out. At the county, it may have been the staff on its own or staff with input from select councillors. At the provincial level, the staff may have taken its drafting instructions from the minister overseeing the accessibility legislation or perhaps the Cabinet. What matters is that one or more individuals in positions of power either did not grasp what the public was saying or they simply ignored portions of the input they disagreed with.

No doubt there are times when public input misses the mark, and should be discarded in part or in full. However, public perception matters. Arbitrariness occurs when decision-makers disregard the public’s voice and then do not provide reasons why.

Fortunately, there are straightforward fixes. In the case of the accessibility legislation, the province has wisely established a working group of stakeholders to help draft the legislation. Another, more global fix, is to ensure that when public input is received on proposed government actions, including proposed legislation, the input must be taken into account, either by incorporating the input in some fashion in the final action or by explaining why the input cannot and/ or should not be reflected in the final decision.

David A. Daniels Wolfville