Imlisanen Jamir
Polybius, in his account of the Roman constitution, dwells on a detail that later admirers of his scheme tend to skip, which is that each of the three bodies depended on another for something it could not do without. The consuls commanded the armies but relied on the Senate for money and supplies, the Senate could be overruled by a people who confirmed or rejected laws and elected the magistrates, and the people in turn needed the other two to carry out anything they decided. Checks of this kind work only when each body is constituted by a process it does not control, and most of the later history of constitutions has been an argument over which processes meet that test.
Modern states have added a fourth kind of body to the Roman three, one that governs nothing and certifies a good deal. Election commissions count the votes, auditors report on the accounts, statistical offices publish the figures on jobs and prices, and judicial appointment panels decide who will sit on the benches. Their usefulness lies entirely in being believed, and most of all by those who have lost, because an umpire whose calls are accepted only by the team that benefits from them is merely an extra player on that team. Plato’s sailors fought over the helm and never thought to ask who was keeping the log, though a log kept by the captain’s cousin settles very little when the ship ends up on the rocks.
The question that decides whether such a body can be trusted is who chose its members and on what terms they can be removed. A commissioner appointed by the government of the day, with a term that ends when the government prefers, will find that the safest reading of any dispute is the one that pleases his appointer, and he need not be dishonest for this to happen, because incentives work on honest men too. The weak point of the whole arrangement is therefore less the quality of the individuals than the design of the chair, and a reasonable person on the losing side can doubt a verdict without accusing anyone of lying.
The remedies are well known and unglamorous. Selection panels that include the opposition and not only the ruling benches, fixed terms with removal possible only through a process as demanding as the one used for a judge, published reasons for decisions on contested matters, and audits of the umpires themselves by someone they do not report to would each reduce the room for doubt. Governments seldom volunteer for any of this while they are winning, which is the very moment at which it costs them least, since a body chosen jointly and protected by law gives the victor an answer ready for the day a result is challenged.
An administration confident of its mandate has little to fear from referees it did not pick alone, and one that resists the idea might consider what the resistance suggests to the public about its confidence.
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