The Journal of Public Accountability
Issue 1, February 2002
Part 1. Mapping Public Accountabilities
Part 2. Articles on Accountability
Part 1. Mapping Public Accountabilities
In this first edition of the Journal we set out, borrowing from
the examples in the Citizen’s
Guide, broad responsibility areas for which public answering
is missing or inadequate. The purpose is to stimulate readers
to identify others; to identify more specific important responsibilities
within areas that the Journal maps; and to propose the public
answering needed, from whom, for the responsibilities identified.
1. National policy responsibilities
- protection of a country’s sovereignty over its core policies
- fairness in medical care and its effective operation
- full and fair assessment of the implications of privatization/deregulation
- compliance with the precautionary principle in regulatory
responsibilities
- environmental, water and species protection, to the standard
citizens have the right to see met
- policy-making (explicit ot tacit policy) that does not unfairly
affect the rights, aspirations, well-being and environments
of citizens in other countries
2. Governance responsibilities
- executive government compliance with the law and with established
policy set under contract with the citizens (a Canadian example
would be Medicare)
- discharging government’s responsibilities diligently
and fairly (i.e., economically, efficiently and effectively)
- effective scrutiny and control over executive government
- ensuring that statutory powers and duties have the public
answering obligation attached
- exacting full and fair executive government answering in legislative
assemblies
- effective standards for ethics and performance for elected
representatives, including:
- standards for their self-informing (including ensuring
that the implications of intended government action -- for
example international agreements -- are understood by the
legislators and public
- upholding the precautionary principle
- elected representatives’ public answering
- full and fair answering by executive government officials
and legislators outside the legislative assemblies ( as prompted
by journalists and public interest organizations)
- reduction of public deception and deceptive language (especially
statements by officials being nothing more than unsupported
"decrees")
- public identification of barriers standing in the way of elected
representatives’ control of government
3. Justice responsibilities in the processes of the law
- ensuring an effective legal justice system, which includes
prevention of wrongful convictions -- judges, legal profession
and responsible ministers
- in public inquiries:
- ensuring justice through public inquiries
- ensuring the adequacy of Inquiries Acts and inquiry mandates
- decisions, by jurisdiction, on whether audit will be the
first option
- limiting legalistic obstruction to the inquiry purpose
- understanding the concepts of preventive management control,
self-informing by directing minds, and the public answering
obligation
- the usefulness to the public of inquiry commissioners’
reports
- useful, diligent and honest action on commissioners’
reports
4. Health and safety responsibilities
- control ensuring safe foods and drugs
- control ensuring safe workplaces
- control ensuring safe water5. Performance of civil servants
- proposing and meeting effective ethics, performance and answering
standards for themselves
- proposing reasonable standards for public answering by executive
government6. Governance of organizations
- adequate self-informing by the organizations’ governing
boards (directing minds) to discharge their responsibilities
- gaining reasonable learning from outcomes and applying it
diligently
- ensuring that the intentions of the organization’s directing
minds serve the public interest before (corporate and public
sector, including universities and research institutions)
- upholding the precautionary principle
- adequate independent audit (validation) of answerings given
7. Responsibilities of military top command
- setting visible performance standards for top command, for
both management control in operations and prevention of deception
in public statements of their responsibilities and performance
- fairness to all members of the Forces
Readers are invited to help fill in and expand the accountability
map.
Part 2. Articles on Accountability
We lead off with two different articles. The first is an example
of a recent major American business sector and regulatory disgrace,
and the implications for citizens needing to hold to account.
The second is an example of missing important answering by Canadian
elected and appointed executive government officials under the
Canadian system of constitutional government. Both examples have
application in other jurisdictions.
Response to Enron: Public Answering
Headlines scream profusely about the stunning collapse of Enron
-- the fastest plunge to a corporate bankruptcy in U.S. history.
Causes are being speculated wildly in the media, and Congressional
hearings should add further fuel to the attribution process. Apparently,
at this stage of truth, Enron’s management failed to disclose
the financial effects of their risky trading transactions. Management
may have accounted for them so as to inflate profits, contrary
to generally accepted accounting principles (GAAP). Further, allegations
indict Enron senior management for selling their shares of company
stock before the market fall, while employees and other investors
could not, or were not aware of the impending disaster. Rhetoric
has heightened such that Richard Cohen wrote in a Washington Post
article, "We all know what happened. A bunch of b-------
picked the pockets of their own employees. That’s not a scandal.
It’s a blinkin’ outrage."
Arthur Andersen, Enron’s external auditor, is vying almost
equally for the main headline of culpability. The audit firm seemingly
accepted Enron’s questionable accounting practices as conforming
to GAAP. The firm did not require Enron to disclose, nor did the
auditors in their audit reports, information that might have warned
investors and others that the roof of financial stability was
about to cave in. Admissions of document shredding by Andersen
partners and staff further paint a dark scenario of possible impropriety.
And, the untimely report by the peer review team of Deloitte &
Touche, giving a "clean bill of health" to Andersen’s
audit operations after Enron went into bankruptcy, raises more
eyebrows on the performances of Enron and auditor and their relationship.
The list of players continues with Enron’s Board of Directors
apparently shying away from serious challenges to Enron’s
management operating decisions and waiving the code of ethics
to sanction certain financial dealings involving company officers
and outside interests. And, according to Enron’s meeting
minutes, their audit committee (all outside members) gave their
blessing to transactions between the company and partnerships
run by the company’s chief financial officer, thereby acquiescing
to significant debt being kept off Enron’s balance sheet.
The SEC has also been thrust into the spotlight by admitting
to not tracking developments at Enron closely, nor conducting
sufficient in-depth reviews that could have disclosed possible
problems. And, members of Congress kept silent, aided and abetted
by lucrative campaign donations.
Victims of the collapse
These are many and widespread. First, the market value decline
in the company’s stock of over $60 billion affects investors,
creditors and employees directly. It is unlikely that many investors
will ever recover their investment and creditors will receive
nothing like 100% on obligations owed them, even if the present
acting CEO can somehow keep the ship afloat. The big hit has been
taken by employees who invested their retirement funds in the
company’s 401(k), which prohibited investment diversification
and, because of lockout provisions, prevented employees from selling
stock from the plan. All this while senior management were able
to dispose of their stock for gain. Further, many employees have
lost or will lose their jobs.
The accounting profession is suffering the blow of reduced credibility
and standing from its previous reputation in the business community.
Auditing firms will now be second-guessed on whether they are
conducting quality audits and using credible GAAP in rendering
their independent opinions on financial statements.
Some feel the equity market per se may now be less attractive
to investors wary of companies following "aggressive"
accounting practices, or who fail to disclose the nature of complex
business transactions and of related-party affiliations.
Finally, the American public have seen the height of personal
greed and selfishness apparently displayed by Enron senior management,
and audit performance by a large, reputable accounting firm that
was sub-standard -- or worse.
What should be done?
The many investigative hearings and the ensuing court cases will
provide the true picture of what transpired, and which parties
are accountable for the harm. When the dust settles, we will see
modifications to the private sector accounting and financial reporting
system. Our advice to the change agents is this fundamental premise:
All accountable parties should be required to answer fully, fairly
and publicly for their respective responsibilities and actions
-- in other words that principles of public accountability be
established and upheld for private sector accounting and financial
reporting. This is not motherhood: effective principles and standards
have been lacking.
The effects of the Enron disgrace are so pervasive that at stake
is the moral accountability of the free market system and especially
that of the accounting profession. Public accountability dictates
that entities such as Enron’s board and the company’s
external auditors, who affect others in society in important ways,
must be made to answer publicly for their performance, fairly
and completely. This follows from two important appraisals:
First, the list of victims embraces stockholders, investors,
creditors, employees, governments, potential investors, taxpayers
and the public in general. These victims are really stakeholders
in that they have provided resources to accountable parties with
the expectation of receiving something in return (in this case,
return on investment from Enron). This stakeholder list is so
vast that only a public type of answering is appropriate for their
diverse needs.
Second, regarding the accounting profession, its professionals
acquire special capabilities and intellectual capital to perform
a specific kind of service to benefit society. In return, professionals
obtain a right, such as monopoly over their areas of expertise,
and public status. Generally, regulatory bodies permit professions
to regulate themselves. Part of the self-regulation should entail
adequate public answering for the processes professionals use
in carrying out their responsibilities and for the results produced
by their activities. It is through public answering that a self-policing
influence emerges for professional conduct that assures that professionals
accomplish what they say they will.
Our call for new and meaningful standards of public answering
in private sector accounting and financial reporting ought to
have the full backing of President George W. Bush, who said in
his 2002 State of the Union address, as a result of the Enron
disgrace, "Through stricter accounting standards and tougher
disclosure requirements, corporate America must be made more accountable
to employees and shareholders and held to the highest standards
of conduct."
So what might these stricter standards and reporting requirements
be? Here are some examples, for starters. One would be the requirement
that audit firms report annually and publicly on their management
control systems that give assurance that their audit partners
and senior management do not "cave in" to the pressure
of clients and sign off on clearly questionable accounting practices
asserted to comply with GAAP and, most important, accounting practices
that simply do not reflect adequate standards of fair and complete
disclosure.
Another standard would have corporate boards of directors assert
annually and publicly that they have comprehended the nature and
financial significance of all major company transactions and dealings,
and that they have no consulting arrangements with the company.
A third would have Congress stating publicly that its management
control system for oversight assures that the Securities and Exchange
Commission and other regulatory agencies having authority over
corporations are protected in not permitting corporate executives
to frustrate the regulatory process through lobbying and other
questionable influencing tactics.
These are only examples of the profound changes needed to alter
financial reporting in "corporate America." The changes
in standards must articulate specifically and clearly the responsibilities,
actions and reporting rules that all accountable parties involved
must follow in an open and transparent environment. The accountable
parties for which standards need to be set include: senior management
and boards of directors of corporations, independent auditing
firms, the Financial Accounting Standards Board (FASB), the Auditing
Standards Board (ASB), the SEC and the U.S. Congress.
Citizens’ Accountability Panels as oversight for reporting
We cannot rely on government playing the oversight role. This
is because Congress and the SEC did not set the conditions and
public trip-wires that would have prevented the Enron debacle,
and we have no evidence of real intent to change current tendencies
and probabilities.
We urge citizens to form Citizens’ Accountability Panels
(CAPs) -- groups of citizens who are interested in creating an
oversight review process based on common sense. The Panels would
review the regular public assertions of each accountable party
that those with the responsibilities claim to be adequate answering
for the discharge of their responsibilities.
The results of the CAPs’ reviews would be made public through
the media so that all can assess the adequacy of the answering.
Those not meeting the general public standards would be subject
to public opinion pressure -- and possible stigma -- to make the
needed changes.
One approach would be to have three separate CAPs. One would
review and report on the accountability assertion reports of senior
management, boards of directors and the independent auditing firms.
Another would review the accountability reports of the FASB and
ASB, answering for the professional standards attained. A third
would review and report on accountability reports of the SEC and
Congress, as answering to the public for the discharge of their
oversight responsibilities. Each of these panels could have networks
of sub-panels for regional coverage of cities housing major corporations,
and for particular industry specialization. This initiative converges
with the President’s encouragement for citizen involvement.
We might even call the Panels part of the USA Freedom Corps!
Summary
Our proposal is a departure from the existing complacent and
ineffective arrangements for financial reporting, audit attestation
and corporate regulation. But the Enron experience requires solid
change, achievable only through an innovative approach that creates
genuine accountability. Not only is this public involvement novel;
it fits with our free enterprise system and the idea that effective
scrutiny is a tenet of American democracy. We can start with network-based
citizen-to-citizen dialogue on feasible arrangements for the framework
and process. We can also identify possible public interest organization
sponsors for the Panels’ operations. We can work out how
they can be established as a new way to produce effective checks
and balances in the financial and business reporting system. "Let’s
roll" fits.
Ernest J. Pavlock, Ph.D, CPA
ernestpavlock@accountabilitycircle.org
Dr. Pavlock of Reston, Virginia is Professor Emeritus, Virginia
Tech
***
Strengthening the Oaths of Office
Sworn by our MPs, MLAs, Ministers, Public Officers, and Judges
Canadians probably think the oaths of office taken by their MPs,
ministers of the Crown, and public servants contain explicit commitments
that the MPs, ministers, and public servants uphold the Constitution
and comply with the law. They don't. They should. And it's time
they did. Compliance with the spirit and letter of the law is
the first safeguard against public officers misusing their powers.
In English law, The Coronation Oath Act, requires the
kings and queens of England to take an oath at the times of every
of their coronation. The Coronation Oath has changed over time,
but recently (1902) was, in part, as follows.
"Archbishop. Will you solemnly promise and swear to
govern the People of this United Kingdom of Great Britain
and Ireland, the Dominions thereto belonging, according to
the Statutes in Parliament agreed on, and the respective Laws
and Customs of the same?
King. I solemnly promise so to do.
Archbishop. Will you to your power cause Law and
Justice, in Mercy, to be executed in all your Judgments?
King. I solemnly promise so to do…." [Emphasis
added]
In North America, when the founding fathers framed The Constitution
Of The United States Of America in 1778, they provided in
the last paragraph of Section 1 of Article II dealing with
the President, in whom the Constitution vests Executive Power,
that the President take the following oath or affirmation before
assuming office:
"I do solemnly swear (or affirm) that I will faithfully execute
the Office of President of the United States, and will to the
best of my Ability, preserve, protect and defend the Constitution
of the United States."
Further in Article VI they provided in part,
… Section 2. This Constitution, and the laws of
the United States which shall be made in pursuance thereof,
and all treaties made, or which shall be made, under the authority
of the United States, shall be the supreme law of the land;
and the judges in every State shall be bound thereby, anything
in the constitution or laws of any State to the contrary notwithstanding.
Section 3. The Senators and Representatives before mentioned,
and the members of the several State legislatures, and all executive
and judicial officers, both of the United States and of the
several States, shall be bound, by oath or affirmation, to support
this Constitution; but no religious test shall ever be required
as a qualification to any office or public trust under the United
States.
Ninety-eight years later when the fathers of confederation framed
the British North America Act, 1867, they provided in §§9,
10, 11, 61, 69, 71, 91, 92, 128, and The Fifth Schedule, in part,
are as follows.
9. The Executive Government and Authority of and over Canada
is hereby declared to continue and be vested in the Queen.
10. The Provisions of this Act referring to the Governor General
extend and apply to the Governor General for the Time being
of Canada, or other the Chief Executive Officer or Administrator
for the Time being carrying on the Government of Canada on behalf
and in the Name of the Queen, by whatever Title he is designated.
11. There shall be a Council to aid and advise in the Government
of Canada, to be styled the Queen's Privy Council for Canada;
and the Persons who are to be Members of that Council shall
be from Time to Time chosen and summoned by the Governor General
and sworn in as Privy Councillors, and Members thereof may be
from Time to Time removed by the Governor General.
61. Every Lieutenant Governor shall, before assuming the Duties
of his Office, make and subscribe before the Governor General
or some Person authorized by him Oaths of Allegiance and Office
similar to those taken by the Governor General."
69. There shall be a Legislature for Ontario consisting of
the Lieutenant Governor and of One House, styled the Legislative
Assembly of Ontario.
71. There shall be a Legislature for Quebec consisting of the
Lieutenant Governor and of Two Houses, styled the Legislative
Council of Quebec and the Legislative Assembly of Quebec.
91. It shall be lawful for the Queen, by and with the Advice
and Consent of the Senate and House of Commons, to make Laws
for the Peace, Order, and good Government of Canada, in relation
to all Matters not coming within the Classes of Subjects by
this Act assigned exclusively to the Legislatures of the Provinces;
and for greater Certainty, but not so as to restrict the Generality
of the foregoing Terms of this Section, it is hereby declared
that (notwithstanding anything in this Act) the exclusive Legislative
Authority of the Parliament of Canada extends to all Matters
coming within the Classes of Subjects next hereinafter enumerated;
that is to say,…. And any Matter coming within any of the
Classes of Subjects enumerated in this Section shall not be
deemed to come within the class of Matters of a local or private
Nature comprised in the Enumeration of the Classes of Subjects
by this Act assigned exclusively to the Legislatures of the
Provinces.
92. In each Province the Legislature may exclusively make Laws
in relation to Matters coming within the Classes of Subjects
next hereinafter enumerated; that is to say, ….
128. Every Member of the Senate or House of Commons of Canada
shall before taking his Seat therein take and subscribe before
the Governor General or some Person authorized by him, and every
Member of a Legislative Council or Legislative Assembly of any
Province shall before taking his Seat therein take and subscribe
before the Lieutenant Governor of the Province or some Person
authorized by him, the Oath of Allegiance contained in the Fifth
Schedule to this Act; and every Member of the Senate of Canada
and every Member of the Legislative Council of Quebec shall
also, before taking his Seat therein, take and subscribe before
the Governor General, or some Person authorized by him, the
Declaration of Qualification contained in the same Schedule….
The Fifth Schedule
Oath of Allegiance
"I A.B. do swear, That I will be faithful and bear true Allegiance
to Her Majesty Queen Victoria. [Note. The Name of the King or
Queen of the United Kingdom of Great Britain and Ireland for
the Time being is to be substituted from Time to Time, with
proper Terms of Reference thereto.]"
These provisions, plus those of Part VII - Judicature, give effect
as well to the constitutional principal of the separation of powers
as to the division of powers. By powers, I mean power, function,
and sphere of activity. The principle of the separation of powers
means that different institutions or entities or persons:
- make laws (legislative power)
in the sense of enacting statutes, which is making one kind
of law;
- execute the laws (executive power)
— execute in the sense of carrying out the applicable laws,
putting the applicable laws into effect, administering those
laws, and accomplishing their purpose and objectives i.e.
governing us; and
- construe and apply the laws (judicial
power) including both enacted statutes and judge
made common law, which is another kind of law.
I believe that in Canada the principle of the separation
of powers is often confused with the division of powers
between the Federal and provincial levels of authority made in
§§ 91 and 92. For that reason the principle of the separation
of powers is not widely or well understood in Canada. The division
of powers between Canada and its provinces, is entirely different
from the principle of the separation of powers, which applies
equally to each of the Federal and provincial levels. It is this
separation of powers at each level that results in the checks
and balances, under our Constitution, on the due exercise
of power by any one of the institutions or entities or persons
exercising a power.
What is also sometimes confusing is that our Constitution allows
the same person to hold more than one office. Thus a person occupying
more than one public office, who is about to do an official act,
must be clear about the capacity in which they will act, and must
be satisfied that what he or she proposes to do is within the
authority and powers of the relevant office.
From an accountability point of view, it is also important to
keep in mind the capacity in which a public officer acted, when
he or she did what he or she is subsequently called upon to account
for. It is that capacity which the person must account for what
they did, and not any other. For example, a minister of the Crown
is also a member of a legislature. He or she may not avoid responsibility
and accountability for what they did in their capacity as a minister
of the Crown, on the basis of some privilege they enjoy in their
capacity as a member of the legislature.
So far as making laws is concerned, Her Majesty acting
by and with the advice and consent of the Canadian Senate and
House of Commons in relation to the subjects listed in §91
of the Constitution Act, 1867 may make Laws for Canada;
and Her Majesty acting by and with the advice and consent of the
respective provincial legislatures in relation to the subjects
listed in §92 of the Constitution Act, 1867 may make
Laws for the relevant province.
So far as executing laws is concerned, §§9,
10, and 11 of the Constitution Act, 1867 provide that the
Executive Government of and over Canada is vested in the Queen,
that the Queen governs Canada through the agency of the Governor
General and the provinces through the agency of the Lieutenant
Governors of the respective provinces. The Queen is advised on
the Executive Government of Canada by the Queen's Privy Council
for Canada, but by convention on the advice only of those members
of Council who are the incumbent Ministry, and governs in relation
to the said matters through the agency of the public service of
Canada. Similarly, in each province, the Queen is advised on the
Executive Government of the province in relation to the matters
set out in §92 of the Constitution Act, 1867 by Her
Executive Council for that province, but by convention on the
advice only of those members of Council who are the incumbent
Ministry, and governs in relation to the said matters through
the agency of the public service of that province. In every case,
Her Majesty governs us in accordance with the common law and applicable
statutes in accordance with the advice of Her Majesty's incumbent
ministers.
Thus Parliament (The Queen, Senate, and House of Commons) and
the provincial legislatures (The Queen and the relevant Legislature)
do not govern us. They are the forums in which we,
through our elected representatives, consent to the enactment
of the statute laws that apply to us, and as well to The Queen,
in her Executive Capacity, acting through her Ministers and public
services, who govern us. Further they are the forums in which
we agree on how much public money, which The Queen, in
her Executive Capacity, acting through Her Ministers and public
services, has collected from us as taxes and paid into the several
consolidated funds, to supply moneys back out of the relevant
consolidated fund to the Queen, in her Executive Capacity, to
spend on Her respective public services in governing us.
These legislative forums also serve to inform us about
matters of public importance, through published reports of the
debates among, or questions asked by, our elected representatives.
This information enables us to tell our representatives what we
think about those issues.
We are governed by Her Majesty in right of Canada and
in right of its several provinces, acting in accordance with the
advice,
- at the Federal level, of the elected leaders in the House
of Commons, of the party electing a majority of members, who
are sworn of Her Majesty's Privy Council for Canada, and
- at the provincial level, by the elected leaders in each of
the legislatures of the several provinces, of the party electing
a majority of the members, who are sworn of Her Majesty's Executive
Council for the relevant province.
In each case, they constitute the incumbent Ministry which advise
Her Majesty, in Her Majesty's Executive capacity, on how to execute
the applicable laws and thus on how to govern us. It is
the relevant Minister or Ministry that is responsible for
how Her Majesty governs us, and consequently it is the responsible
Minister or Ministry that is accountable for the act or
acts done to us collectively or individually in the name of Her
Majesty by that part of the public service which the Minister
or Ministry controls.
Since the Crown in its Legislative Capacity has made every statutory
enactment, the Crown in its Executive Capacity cannot complain
about the laws and must necessarily act in accordance with them.
In other words, ministers must comply with the law.
In governing us, Her Majesty conducts the Executive Government
of Canada only through the agency of the public service (comprising
the civil service and the military) and, as described above, normally
in accordance with the advice of her incumbent Ministers. In this
way there is always an agent who is responsible and accountable
for what they do or allow to be done in the name of the Crown.
While in office, Ministers and public servants are politically
accountable to the nation, as represented by our elected representatives
in the House of Commons, and in the relevant legislature, as applicable.
Ministers are also accountable for what they do, at all times,
legally, in the relevant court, for compliance with the law.
The standard to be applied in evaluating the conduct of Ministers
of the Crown and public servants is that expressed in Her Majesty's
Coronation Oath, which is a part of the Constitution of Canada.
I believe that the terms of Her Majesty's Coronation Oath are
not sufficiently well known in Canada.
The law of principal and agents is an important but underwritten
part of the Constitution of Canada. An agent is a person employed
to act on behalf of another. Agency is the legal relationship
between one person, the agent, having the authority to act, and
having consented to act, on behalf of another person, the principal,
usually with a view to bringing the principal into a contractual
relationship with a third party. Most people will be familiar
with a real estate agent, who helps people buy and sell their
home. That is a common form of agency. Once an agent has brought
his, her, or its principle into a contractual relationship with
a third party, then it is as if the principal had made the contract
directly with the third party, the agent ceases to be involved
so far as concerns the third party, and the principle may sue
or be sued on the contract directly. The agent, however, remains
accountable to his, her, or its principal.
Likewise, since the Crown in its Legislative Capacity has made
every statutory enactment, Her Majesty's judges, in doing justice
by deciding disputes submitted to the courts, must construe and
apply the law in deciding those disputes. Again, the standard
to be applied in measuring the conduct of Her Majesty's judges
is that expressed in Her Majesty's Coronation Oath.
§10. of the Supreme Court Act provides, "Every judge
shall, before entering on the duties of the office of judge, take
an oath in the following form:
"I, ..........., do solemnly and sincerely promise and swear
that I will duly and faithfully, and to the best of my skill
and knowledge, execute the powers and trusts reposed in me as
Chief Justice (or as one of the judges) of the Supreme Court
of Canada. So help me God. "
Similarly §9.(1) of the Federal Court Act provides,
"Every judge shall, before entering on the duties of the office
of judge, take an oath that he will duly and faithfully, and to
the best of his skill and knowledge, execute the powers and trusts
reposed in him as a judge of the Court."
One hundred and fifteen years after Confederation, the Canadian
Senate and House of Commons "patriated" the Constitution of Canada.
They did so by causing the Parliament of the United Kingdom to
enact The Canada Act, 1982 (U.K.). Schedule B to that Act
is the Constitution Act, 1982. Part 1 of the Constitution
Act, 1982 is the Canadian Charter of Rights and Freedoms.
Our Charter provides in §§15(1), 32(1), and 52(1)
and (2) as follows.
"15. (1) Every individual is equal before and under the law
and has the right to the equal protection and equal benefit
of the law without discrimination....
"32. (1) This Charter applies
(a) to the Parliament and government of Canada in respect
of all matters within the authority of Parliament....
(b) to the legislature and government of each province in
respect of all matters within the authority of the legislature
of each province
"52. (1) The Constitution of Canada is the supreme law of Canada,
and any law that is inconsistent with the provisions of the
Constitution is, to the extent of the inconsistency, of no force
or effect.
(2) The Constitution of Canada includes
(a) the Canada Act 1982, including this Act;
(b) the Acts and orders referred to in the schedule;...."
These constitutional provisions repeat in writing the principle
of the supremacy of law that has applied in England since 1607,
when Chief Justice Coke said to King James I that the King was
subject to no man, but was subject to God and the law, in the
case Prohibition del Roi. This principle has applied in
Canada since 1760, when the laws of England were extended to here.
The Charter, other than Section 15, came into force in
Canada on April 17, 1982, and §15 came into force on April
17th, 1987. §52(1) of the Charter is comparable to
Section 2 of Article VI of the Constitution of the United
States of America. Part V of the Canada Act, 1982, being
the Procedure for Amending Constitution of Canada tends to make
Canada's Constitution more rigid, and so somewhat more
like the Constitution of the United States of America than
before, although, since the Constitution Acts 1876 to 1982
are not a complete statement of the Constitution of Canada, the
two provisions probably cannot be equated.
Returning to oaths of office, the counterpart in Canada of §3
of Article VI of the Constitution of the United States of America
is found in §128 and Fifth Schedule of the Constitution
Act, 1867, which are set out above.
Since Her Majesty the Queen swears in her Coronation Oath to
govern the People of Canada according to the Statutes in Parliament
and the legislatures agreed on, and the Laws and Customs of Canada
and its provinces, it follows that the advice tendered to Her
Majesty in her Executive capacity by Her Majesty's respective
Canadian and provincial Ministries must ensure that Her Executive
government of us meets that standard. So also her judges.
We require our public officers to swear oaths of office before
they assume their duties. They are considered below.
Governor General's Oaths
When a person is appointed Governor General to represent Her
Majesty in Canada, before assuming his or her duties the person
swears the following oaths.
Oath of Allegiance
I , .......................... , do swear that I will be faithful,
and bear true allegiance to Her Majesty Queen Elizabeth the
Second, Her Heirs and Successor, according to Law.
So help you God.
Official Oaths
I do swear that I will well and truly serve Her Majesty Queen
Elizabeth the Second in the office of Governor General and Commander-in-Chief
of Canada and duly and impartially administer justice therein.
So help you God.
I do swear that I will well and truly serve Her Majesty Queen
Elizabeth the Second in the Office of Keeper of the Great Seal
of Canada.
So help you God.
Prior to assuming their duties §61 of the Constitution
Act, 1867 provides the Lieutenant Governors must swear or
make a similar oath or affirmation.
Privy Councillor's Oaths
When one of our elected representatives is deemed a leader in
the House of Commons or Legislature, before assuming his or her
duties as a minister of the Crown the person is sworn of Her Majesty's
Privy Council for Canada or of Her Majesty's Executive Council
for a province. Persons sworn of Her Majesty's Privy Council for
Canada are believed to swear the following three oaths.
Oath of Allegiance
I, .......................... , do swear that I will be faithful,
and bear true allegiance to Her Majesty Queen Elizabeth the
Second, Her Heirs and Successor, according to Law.
So help you God.
The Oath of the Members of the Privy Council
You, ........................, do solemnly promise and swear
that you will serve Her Majesty truly and faithfully in the
Place of Her Council in this Her Majesty's Dominion of Canada,
you will keep close and secret all such matters as shall be
treated, debated and resolved on in Privy Council, without publishing
or disclosing the same or any part thereof, by Word, Writing,
or any otherwise to any Person out of the same Council, but
to such only as be of the Council, and yet if any matter so
propounded, treated and debated in any such Privy Council, shall
touch any particular Person, sworn of the same Council upon
any such matter as shall in any wise concern his Loyalty and
Fidelity to the Queen's Majesty, you will in no wise open the
same to him, but keep it secret, as you would from any Person,
until the Queen's Majesty's Pleasure be known in that behalf.
You will in all things to be moved, treated and debated in any
such Privy Council, faithfully, honestly, and truly declare
your mind and opinion to the honour and benefit of the Queen's
Majesty, and the Good of Her Subjects without partiality or
exception of persons, in no wise forbearing so to do from any
manner of respect, favour, love, meed, displeasure, or dread
of any Person or Persons whatsoever. In general you will be
vigilant, diligent, and circumspect in all your doings touching
the Queen's Majesty's affairs; All which matters and things
you will faithfully observe and keep, as a good Councillor ought
to do to the utmost of your power, will and discretion.
So help you God.
Oath of Office
You, ........................................, do solemnly
and sincerely promise and swear that you will truly and faithfully,
and to the best of your skill and knowledge, execute the powers
and trusts reposed in you as
...................................................................
.
So help you God.
The Public Service of Canada
§3. of the Public Service Employment Act establishes
a commission called the Public Service Commission, consisting
of a President and two other members to be appointed by the Governor
in Council. Commissioners hold office during good behaviour for
ten years and are eligible for re-appointment to a further term
not exceeding ten years. Each commissioner has the rank of a deputy
head of a department and may not hold any other office in the
Public Service or engage in any other employment. Before assuming
office, each commissioner must swear the oath or make the solemn
affirmation set out in Schedule I.
Schedule I
(Section 3)
Oath or Solemn Affirmation of
Office of Commissioner
I , ...................., do solemnly and sincerely swear (or
affirm) that I will truly and faithfully, and to the best of
my skill and knowledge, execute and perform the office of (Commissioner
or President, as the case may be) of the Public Service Commission.
(In the case where an oath is taken, add "So help me God").
§ 23. of the Public Service Employment Act provides
that every deputy head and employee shall, on appointment from
outside the Public Service, take and subscribe the oath or solemn
affirmation of allegiance and the oath or solemn affirmation set
out in Schedule III. Accordingly they swear or affirm as follows.
Oath of Allegiance
I , .......................... , do swear that I will be faithful,
and bear true allegiance to Her Majesty Queen Elizabeth the
Second, Her Heirs and Successors, according to Law.
Schedule III
(Section 23)
Oath or Solemn Affirmation of
Office and Secrecy
I , ...................., solemnly and sincerely swear (or
affirm) that I will faithfully and honestly fulfil the duties
that devolve on me by reason of my employment in the Public
Service and that I will not, without due authority in that behalf,
disclose or make known any matter that comes to my knowledge
by reason of such employment. (In the case where an oath is
taken, add "So help me God").
British Columbia (as a provincial example)
Oath of Office for Members of
the Executive Council (Ministers)
Allegiance
I,______________________, affirm that I will be faithful and
bear true allegiance to Her Majesty The Queen of Canada, Her
Heirs and Successors, according to law.
Office
I,______________________, affirm that I will serve Her Majesty
duly and faithfully, and to the best of my ability fulfil the
responsibilities and trust granted to me as a Member of the
Executive Council of British Columbia.
Confidentiality
I,______________________, affirm that I will keep confidential
all matters dealt with in the Executive Council, and I will
not disclose any of the same to any person other than a Member
of the Executive Council except as authorized by it or as required
in the lawful discharge of my duties as a Member of the Executive
Council.
Affirmed before me at Victoria, British Columbia
this___ day of________, AD 20____
_______________________________
Lieutenant Governor of British Columbia
The Public Service of British Columbia
The Public Service Act of British Columbia provides in
§21 that persons appointed to the public service in British
Columbia under §15 are to take the prescribed oath. The Public
Service Oath Regulation provides the oath is the form set
out in Item 1 or 2 of below.
Item 1:
I, ......................................................................,
do swear/affirm that
1 I am/am not a Canadian citizen and all facts and representations
made by me for the purpose of becoming a public servant are
true to the best of my knowledge and belief.
2 I will truly and faithfully, according to my skill, ability
and knowledge, execute the duties, powers and trusts placed
in me as a servant of the Crown.
Sworn/Affirmed by me, at
..................................................,
........................................[date]."
.................................................. .....................................
Person administering Oath Deponent
Item 2:
I, ………........................................................................,
do swear/affirm that
1 All facts and representations made by me for the purpose
of becoming a public servant are true to the best of my knowledge
and belief.
2 I will truly and faithfully, according to my skill, ability
and knowledge, execute the duties, powers and trusts placed
in me as a servant of the Crown.
3 I am a Canadian citizen and I will be faithful and bear
true allegiance to Her Majesty and Her Successors.
Sworn/Affirmed by me, at
..................................................,
........................................[date].
.................................................. .....................................
Person administering Oath Deponent
A comparison of these oaths used in Canada to the Coronation
Oath, made by Her Majesty, and to the Oath of Office, made by
the President of the United States of America, shows that the
oaths of office we use here in Canada are weak and unsatisfactory
from the viewpoint of accountability. Strengthening ministerial
and public service oaths (if only from the point of view of underlining
how officials are expected to conduct themselves) would help to
make public officers and public servants in Canada more aware
of their responsibility to comply with the law. I believe that
ministers’ and public servants' oaths would be strengthened
by using the words indicated by boldface in the texts below.
Canada/Province:
Senators and Members of the House of Commons/Legislatures
Oath of Office
You, .........................................., do solemnly
and sincerely promise and swear (or affirm) as a
member of the Senate/House of Commons/Legislative Assembly of
...................., that
you will truly and faithfully and to the best of your skill,
knowledge, and ability, fufil your
responsibilities and duties, and use the powers and
trusts reposed in you, in accordance
with the Constitution and the laws of Canada and its
provinces,
So help you God
Federal Ministers (Privy
Councillors) and their deputies
Oath of Office
You, ........................................, do solemnly
and sincerely promise and
swear (or affirm) that as Canadian
[Deputy] Minister of ................... you will
truly and faithfully serve Her Majesty
and to the best of your skill, knowledge, and
ability, fulfil the responsibilities
and duties to which you are subject, and will use
the powers and trusts reposed in you, in
accordance with the Constitution and the laws of Canada
and its provinces,
So help you God
Provincial Ministers (Executive Councillors)
and their deputies (based on B.C. Example)
Office of Office
I ,______________________, do solemnly
and sincerely promise and swear (or affirm) that
I will serve Her Majesty duly and faithfully, and, as
a Member of Her Executive Council for British Columbia,
to the best of my skill, knowledge,
and ability will fulfil
the responsibilities and duties to
which I am subject, and will use the powers and
trust granted to me, in accordance
with the Constitution and the laws of Canada and its
provinces.
Federal Public Servants
I, .................................................., solemnly
and sincerely promise and
swear (or affirm) that I will faithfully and honestly fulfil
the responsibilities and
duties, and use the powers and trusts,
that devolve on me by reason of my employment as
a servant of the Crown in accordance with the Constitution
and the laws of Canada and its provinces, and that
I will not, without due authority in that behalf, disclose or
make known any matter that comes to my knowledge by reason of
such employment. (In the case where an oath is taken, add "So
help me God").
Provincial Public Servants [e.g. British Columbia]:
Item 2:
I, ......................................................,
do solemnly and sincerely promise and
swear/affirm that
1 All facts and representations made by me for the purpose
of becoming a public servant are true to the best of my knowledge
and belief.
2 I will, as a servant of the Crown, truly and faithfully,
according to my skill, knowledge
and ability fulfil my responsibilities and duties,
and use the powers and trust placed
in me, in accordance with the Constitution and the
laws of Canada and its provinces.
3 I am a Canadian citizen and I will be faithful and bear
true allegiance to Her Majesty and Her Successors.
Sworn/Affirmed by me, at
..................................................,
........................................[date].
.................................................. .....................................
Person administering Oath Deponent
Judges
"I, ..........., do solemnly and sincerely promise and swear
that I will honourably, faithfully,
impartially, and conscientiously serve Her Majesty,
and fulfil my judicial responsibilities
and duties to the best of my skill, knowledge,
and ability, and use the powers and trusts reposed
in me as Chief Justice (or as one of the judges) of the [here
name Court] to administer law and justice
in mercy to all persons alike without fear, favour, or prejudice,
in accordance with the Constitution and the laws of Canada
and its provinces.
So help me God."
Twenty years have passed by since we "patriated" the Constitution
Acts 1867 to 1982 including the Charter, which makes
the Constitution of Canada the supreme law of Canada. So far as
I am aware, however, no jurisdiction in Canada has, in those intervening
twenty years, updated the oaths of office to reflect the reality
of these new constitutional provisions. It is time that the Federal
and provincial legislatures strengthened these oaths. Stronger
oaths would tell the public officers making them what we expect
from them. Producing common oaths in each jurisdiction would further
strengthen them. Without the element of compliance with the law
formally placed in the oaths, and without officials’ reporting
of their compliance, we cannot tell how seriously they regard
that compliance. The response, "Well, all that is surely
implied in the oaths" won’t do.
At the outset of a person's assumption of public office, his
or her oath serves at least as a useful personal mission statement.
The oath of office ceremony makes officials’ acceptance of
their obligations all the more visible to the public. But regardless
whether legislators strengthen the oath wordings, in my opinion
officials have a natural duty to comply with the Constitution
and laws of Canada, and are bound to act in accordance with the
Constitution and the laws of Canada and its provinces,
as if they had taken the oaths proposed here. They can reasonably
be asked to report publicly and regularly whether they have so
acted.
G.F. Windsor,
Barrister and Solicitor
georgewindsor@accountabilitycircle.org
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