The habit of giving government officials the authority to grant exceptions to laws, rules and regulations is commonly justified as a pragmatic and reasonable measure that provides flexibility and efficiency in public administration. But in practice it constitutes a functional distortion with an obvious negative effect: it allows private interests to establish strategic ties with government administrators (and the political class in general) to obtain exceptions that are convenient for their particular interests. These ties frequently include corrupt practices. If one of the roles of government is to regulate the use of public spaces in the bests interests of the public, and it is expected that all private entities, both large and small, private or corporate, accept the general rules, then the authority of officials to grant exceptions to the applicable rules and regulations opens the possibility of corrupt agreements that have nothing to do with reasonableness, pragmatism, flexibility and efficiency. They do have to do with the privileges of these entities at the expense of the public good. The frequent result is the depredation of the environment and other public resources, undermining social confidence and contributing to the demoralization of the public.
For example, several years ago, the Independent Citizens Committee for the Evaluation of Government Transactions (also called the Blue Ribbon Panel), created by Governor Sila Calderón to investigate cases of corruption during the prior administration, discovered that a condominium built in Puerta de Tierra had exceeded by six floors the maximum height allowed by zoning regulations. But instead of addressing this error with corrective and punitive measures, the governor accepted the developer’s claim to the effect that the regulatory agency involved (the Permits and Regulation Administration, or ARPE for its Spanish acronym) had granted an exception to the rules.
It is widely known that corporate interests encourage the proliferation of exceptions through “political investment.” In other words, they donate money to the parties (which become ever more important because of the growing cost of electoral campaigns). Powerful public-private alliances, both formal and informal, have also proliferated, in which direct payments are made for political favors (corruption between business and officials). The recent cases of the convictions of the former Secretary of Education Víctor Fajardo and former legislator Jorge de Castro Font are testimony to what is made possible by the discretionary power given to government administrators in violation of the rules and regulations they are supposed to protect in the interests of society.
In other words, corruption is deeply (though not exclusively) rooted in the administrative habit of granting exceptions. If officials did not have the authority to grant exceptions to rules and regulations, it would not be so easy to give way to the temptation of the bribes offered by developers and other private corporate interests. We can therefore conclude that corruption is, in part, a direct effect of the practice of granting exceptions that is spread throughout the government structure like an evil infection. It is based on an atavistic authoritarian pattern of our political culture that formalizes the persistence of regular practices of exceptions. Undoubtedly, this enormously weakens the development of social capital and democratic coexistence. It should be remembered that the normalization of the practice of granting exceptions originated in the pre-modern autocratic state.
The only alternative is based on eliminating the administrative authority to grant exceptions and promoting, at the same time, a vigilant, citizen activism. On occasion, intelligent observation by citizens has prevented the granting of exceptions for developments that violate laws and regulations. A notable case was when the community of Miramar prevented the Department of Justice under the administration of Governor Aníbal Acevedo Vilá from building an addition to its headquarters in a residential neighborhood in violation of the scale permitted by zoning regulations. But as long as officials are authorized to grant exceptions, sometimes without notifying the public, even the most vigilant and competent citizen action is not strong enough. One case that remains to be decided, between the public good and the pressure of development, is that of the Northeast Ecological Corridor, land between Luquillo and Fajardo that the Puerto Rican community wants to protect for its environmental value but that developers want to use for real estate businesses. This is one of the cases that came to light through the investigations surrounding influence peddling by Senator Jorge de Castro Font during the Senate presidency of Kenneth McClintock.
There have also been cases in which the officials in office have refused to grant exceptions. One example is when Governor Roberto Sánchez Vilella (1965-1969) refused the Navy’s request to depopulate the island municipalities of Culebra and Vieques and transfer their ownership to the United States government for exclusive use of the military. In his decision to deny the request, Sánchez Vilella invoked the rule in the Commonwealth Constitution that requires that citizens approve the dissolution of a municipality in a referendum (Artcle 6, Section 1). In other words, he refused to use his political and administrative authority to grant an exception requested by the U.S. Navy on national security grounds. We should also remember that the rules allowing exceptions also include the temporary suspension of the Constitution (including civil rights) when the state, that is the government in charge, deems it necessary or convenient as a matter of urgency. The Commonwealth Constitution authorizes a state of emergency “in cases of invasion, rebellion, epidemics or any other acts that cause them” (Article 6, Section 17).
Empirical evidence makes it clear that democratic coexistence demands a direct tie between the concepts and practices of the rule of law and the direct and vigilant participation of the citizens. To depend only on the public authorities to comply with the law and create an environment of confidence in transactions between groups or individuals, even if administrative exceptions were eliminated (which is not likely), is to allow the pernicious presence of a state of exceptions, and therefore, corruption.
Author: Roberto Gándara Sánchez
Published: September 11, 2014.
This post is also available in: Español