Presentation To Caribbean Law Institute On Justice Improvement Project- 9 May 2014

Justice should in the context of this project be given a wide interpretation to include just laws. That appears to be recognised by the inclusion in the agenda of “the development of laws at the regional and national levels”.

The greatest need in our region in terms of laws is in the area of governance. I am sure we all agree that all of our countries would benefit from improved governance and, forgive the buzzwords, greater transparency and accountability.

Every country which espouses democracy should keep under constant review its governance standards and legislation. That review process is even more essential to young and small democracies such as ours. The inadequacy of our constitutions adds to that need. I am qualified to speak with authority on St. Kitts and Nevis only but I verily believe that other Caribbean countries face similar challenges in this area.

You could not find a more poignant but realistic description of the problem than in this paragraph from the inauguration address of President Carmona of Trinidad and Tobago just a year ago:

“For many, many years the ship called the Republic of Trinidad and Tobago has left its safe moorings of integrity, accountability, responsibility, transparency and inclusiveness. We are good at sound bites and labeling. We can be excellent wordsmiths. The cynics, they howl in the wilderness. But if we are to establish a better, more progressive, more humane society, real change must be invoked.” 

And so say all of us in the Caribbean. The Justice Improvement Project should be geared to assisting that change.

We did ourselves a great disservice in accepting from Britain a constitution based as purely as it is on the Westminster model. That model is not ideally suited to small countries such as ours and militates against good governance. Allow me briefly to amplify that argument starting at the top of the constitutional hierarchy. 

All Caribbean countries which were British colonies began their independence as monarchies and most remain that way. The Queen is Head of State and is represented in country by a Governor General(GG). Governors General (and Presidents of the countries which are now Republics) are given varied powers by the constitutions. Most such powers are exercised on recommendation of or after consultation with the Prime Minister or executive. But some critical ones are exercised in the independent judgment of the GG or President. In the case of St.Kitts and Nevis these include appointment of the Chairman of the Electoral Commission and the Supervisor of Elections. The constitution says that where the GG must accept the recommendation of any other person or authority, while he cannot reject the recommendation he can ask the recommender, once, to reconsider and if the recommender reconsiders and makes a different recommendation then he can ask the recommender to reconsider again. To borrow a term from President Carmona relating to his powers, the GG is not impotent. 

But as importantly the role of the GG should be one of guidance, an elder statesman so to speak. President Carmona is showing the powerful role that can be played by a Head of State by his incisive pronouncements on matters of governance. 

However, certainly in St.Kitts and Nevis, the role of the Head of State has been minimized. In 1981, even before independence, while we were still an Associated State, the Queen ignobly removed Sir Probyn Inniss as Governor at the request of the Premier. As a result, post independence in 1983 the role of the GG has been almost entirely ceremonial. We do not therefore have that independent guidance and influence that should come from the top.

Almost absolute power is vested in the Prime Minister as recognised by the late Sir Fred Phillips in these words: "For we must never forget that in small communities such as Caribbean States, it is easy for the Prime Minister wielding an all pervasive influence, to manipulate almost everything and everybody, especially since, in most territories, he (or she) is the appointing authority in respect of almost every person or board operating in the public domain”. 

We have in theory the separation of powers but the size of our legislature means that most, if not all, of the members on the Government side in the legislature are also members of the Executive leaving the judiciary as the only truly independent branch of Government. And we must thank God for that independence which has saved us in St.Kitts and Nevis at least, from total authoritarianism. 

We have the added quirk in St.Kitts and Nevis in not having a second legislative body. Again because of our size it was thought practical to establish a unicameral parliament including appointed Senators with elected representatives . At present two Senators are appointed by the Prime Minister and one by the Leader of the Opposition. When the Attorney General is not an elected member he automatically becomes a Senator. That has enabled the current Government with a minority of elected members to pass legislation while ignoring a motion of no confidence (MONC) filed 17 months ago. Senators are not allowed to vote on a motion of no confidence.

They can however vote on a resolution to change the electoral boundaries and on all legislation. Shortly after the filing of the MONC, Government introduced legislation to increase the number of Senators.That effort was denied by the Court and so the Government found another way of achieving the current majority of votes by having the elected member who served as Attorney General resign the position and be replaced by a non elected lawyer. The former AG was made Minister of Justice. 

Consequently the current position is that there are five elected members on the Government side and six on the Opposition. Government has three Senators and the Opposition one which gives an eight to seven majority on all but MONC.

The constitution does provide for bodies or appointed individuals whose role is intended to contribute to good governance or to have oversight of the executive. I speak principally of the Auditor General and the Public Service Commission. But the effectiveness of these mechanisms is severely limited.

One final fact to make my point. 30 years after independence St.Kitts and Nevis still operates in effect under the colonial era General Orders. Lip service has been paid to modernisation of the Civil Service but that has not happened for obvious reasons. The General Orders focused power in one man, the British Governor. Those powers are now in practice exercised by the Prime Minister.

The Civil Service is hiring ground for loyalists which in turn adds to the limitations in democratic governance. Many Civil Servants are untouchable and need not be productive. There is nothing civil about some Government departments. You go there to beg a favour or so they see it. 

We are therefore institutionally designed to promote partisanship and the term "winner takes all" used to describe the effect of elections under the Westminster system is particularly apt for our situation. 

How then can we make government more open and accountable and efficient. In my view efficiency should be part of this debate because public sector efficiency is critical to economic development and inefficiency undermines good governance. 

Laws are required to create the transparency and accountability which our constitutional situation deters. However laws alone will not achieve that goal. There must be a change of attitude towards governance. We must change the literal implementation of the winner take all principle and the patronage which follows it. Without that change we will be spinning top in mud as the saying goes. 

The attitudes and patronage I mentioned do not only militate against good governance but they negatively impact efficiency and productivity and hence economic development. They promote corruption, they affect social cohesion, they undermine the rule of law and will, certainly in St.Kitts and Nevis, lead to our ruin unless changed. Those attitudes do not mix well with crime and guns which are also prevalent in our society. 

Even without constitutional reform, which the St.Vincent example shows can be difficult to achieve, we can by legislation improve the governance infrastructure. Hopefully when attitudes change and a new generation gets fed up of the dysfunction constitutional change will follow. 

I will list and comment briefly on some areas of such legislation and other measures. These are:

 -term limits 

- campaign finance 

- integrity in public life 

- freedom of information 

- civil service reform 

- institutional strengthening of the justice system - procurement oversight 

- use of the government media 

- anti corruption measures 

- public education on access to justice

- strengthening civil society 

Term limits 

Term limits are in my opinion a very practical way of promoting good governance. 

Campaign finance 

There is to my mind the greatest need for legislation in this area. Elections are being bought and sold throughout the Caribbean. Obscene amounts of money are being spent on campaigns. There is no free lunch. Governments are exposing themselves to influence by those who finance their campaigns. A simple example from my country. We have the "overseas vote". Nationals are flown in on charters to vote. Because of lax election laws an overseas national can register in virtually any constituency he can claim a connection with. Such voters are therefore registered strategically. Overseas nationals usually comprise in excess of ten per cent of the vote. The party which can bring in the most, always the governing party, has a built in advantage. In the last election charters came from Canada, the USA, the USVI,St. Maarten, the BVI and other parts of the Caribbean. Seats were purchased for voters to fly from the UK. And to compound the problem Nevis has its own local government and separate elections.

Hence we can have an election every two or three years. We have had 5 in the past ten years. 

I have read of complaints throughout the islands of huge election spending. Nothing corrupts our systems more than this. Legislation is urgently required to ferret out who is paying the piper and to regulate this scourge. I quote from the report of a committee established in St.Kitts and Nevis to review the financial terms for parliamentarians and Government Ministers. The committee in its report in 2005 said this: 

“After 21 years of independence, St. Kitts and Nevis will demonstrate that it has truly come of age if efforts can begin now to make progress on these two crucial issues.” 

The two issues were campaign finance and integrity in public life.

Of course the Government took the increased salaries recommended but has done nothing on the first issue. As I will now relate they have done something belatedly and token on the second. 

Integrity in public life 

This is a hot ticket item in my country but I am sure is established in others. We know of the Trinidad experience. After more than 20 years of public debate our Government, seeking to score political points in the face of the MONC and having frustrated a Bill on the subject tabled by Opposition members, passed the Integrity in Public Life Act last September.

The Act contains a regime for declaration of assets and a political code which would be revolutionary if applied. But the Act requires a Ministerial Order to bring it into force and not surprisingly that has not been forthcoming. Lip service again. 

While this type of legislation is important in the arsenal against malfeasance it is only as effective as those who enforce it. Trinidad did so but in the smaller territories effective enforcement can more easily be deterred or frustrated by ruthless politicians. It is all the more important therefore that public awareness be enhanced to create pressure for compliance and action otherwise. 

Freedom of information 

I believe some islands already have this legislation. I would like to hear of its effectiveness. There are of course limitations on the information which must be disclosed but I think such legislation can serve as a useful if not perfect deterrent and should be promoted. 

Civil service reform 

Genuine legislation is also required in this area to make the public service more accountable and productive and to deter corruption. 

Institutional strengthening of the justice system As was mentioned in the invitation letter the CCJ will be involved in this area. I had the privilege of a discussion late last month with the President Sir Dennis Byron, my former colleague at the Bar in St.Kitts, when we met in the BVI for the funeral of the late Dr. Joseph Archibald QC another distinguished Kittitian. I am sure that interesting proposals will emanate from the CCJ. 

While our courts have a sterling record of judicial independence there are serious constraints in recruiting judges in the OECS. As we are a multi country jurisdiction we also suffer because the court has to rely on financing from the 9 member countries all of whom are not always as forthcoming as they should be. We need a similar funding arrangement to that of the CCJ to allow the court to achieve effective financial independence. 

I include within this section the burning issue of the acceptance of the appellate jurisdiction of the CCJ. My view is that the move away from the Privy Council was stimulated as much by the Privy Council decision in the Barbados case of C.O.W Williams v Blackman as by the death penalty rulings. Many politicians felt that the Privy Council was becoming too intrusive of executive (and as in the Williams case, Cabinet) decisions. But as they are cautious about any court they wanted to see how the CCJ would perform in that area. They don’t like what they see in the related CCJ judgments hence the continued inertia.

Procurement oversight 

I mentioned the Auditor General in St. Kitts and Nevis. I am sure that other countries have similar positions and greater oversight than we do. I read occasionally of the work of the Jamaican Contractor General. All of our countries can benefit I am sure from a review of this critical area of regulation. The banks and other financial institutions are regulated. Public companies are regulated but oversight is minimal of government and its entities. Regulation by election should not be the only form. 

The work of institutions and individuals who exercise oversight duties should be properly funded and they should be insulated in tenure and remuneration as are our judges. Investigative and enforcement powers should be akin to those of the courts. 

Use of the government media 

You may well ask how this fits into this scheme. I think it does because of the critically important role played by the media. 

The Eastern Caribbean Supreme Court (quoting Rawlins  J, as he then was, in the Pinard case in Dominica)  reiterated in a recent Nevis elections case that access to  the government owned media is a fundamental right of  all candidates for election to public office. It is in my  opinion a fundamental right of all citizens. The Privy  Council went a long way towards establishing that right  in the famous John Benjamin case from Anguilla. But  governments, certainly that of St.Kitts and Nevis, continue to monopolise the government media which is  no more than a propaganda machine. On the other hand  there are no apparent efforts by the opposition to enforce  their right in this regard. I assume this is because if they  got into power they would do exactly the same. 

The Court of Appeal said this in the Nevis case: “The duty of the government-owned media to work in support of and not to obstruct the public’s right to freedom of information and freedom from discrimination on the basis of political affiliation has been established in our region since at least the decision of Justice Saunders in the first-instance decision Suit No. 56 of 1997, (decided 8^th January 1998), in the Talk Your Mind case from Anguilla: Benjamin and others v Minister of Information and Broadcasting and another [2001] UKPC 8.” 

We need due recognition of those rights and legislation to regulate their use and to deter abuse by Government. 

Anti corruption measures 

This problem was well put in perspective by Greg Christie, Attorney at Law and former Contractor General of Jamaica in a presentation earlier this year to the Transparency Institute of Trinidad and Tobago and I quote: 

“I say this because it is important for us to understand that although corruption is a global problem which impacts both rich and poor countries alike, the threat that it poses to developing countries is disproportionately severe and, if not checked, can potentially lead to state failure or even state capture.

Indeed, it was Mr. Jim Yong Kim, the President of the World Bank, who incisively characterized the gravity of the matter when, on December 19, 2013, he put it this way: “Let us not mince words. In the developing world, corruption is Public Enemy #1”. 

Defined generally as the abuse of public office for private gain, corruption, first and foremost, erodes the quality of life of the citizenry by diverting public funds away from the provision of critical social necessities, such as health-care, education, water, roads and electricity. 

Corruption also leads to human rights violations, steals political elections, distorts financial markets, reduces investor confidence, increases the price of goods and services, undermines or destroys confidence in critical public institutions, and enables organized crime, terrorism and other threats to human security to flourish. 

But for developing countries, such as our regional states, the magnitude of the potential for the adverse socio-economic consequences which corruption portends can be substantial. 

Insidious in its very nature and in the way in which it operates, the threat of corruption for the Caribbean is foremost in its so called ‘grand’ forms. Bribery, kickbacks, embezzlement of public funds, cronyism, links between politicians and organized criminal elements, influence peddling, and the abuse of one’s public office for political gain, or to pervert the course of justice, are but a few of its far-reaching manifestations which should be of major concern to us in the region”. 

Mr. Christie pointed out that despite having the most advanced infrastructure in the region for oversight of government procurement, corruption remains rampant in Jamaica because of the lack of political will to give the bodies involved real teeth.

Public education 

A greater priority than legal education is public education on its access to justice. I urge and am sure this will be dealt with in the project. More is needed than talk shows and occasional advertising to sensitise the people of the region to their rights and enforcement mechanisms. There are models all over the world which can be explored. 

The effectiveness of laws on governance will be enhanced if the public knows of them and how to enforce them. 

Strengthening Civil Society 

A country is only as strong as its Civil Society. Too many groups within Civil Society in our islands are silent. At the same time the politicians are becoming better and better at spin with the aid of highly paid spin doctors from around the world. 

Lawyers are particularly well suited to help our people decipher the truth. Our Bar Associations should lead the way in mobilising Civil Society to overcome the political tribalism perpetuated by the spin and to reduce the glorification, in many instances deification, of leaders.

I am interested by the rise of nontraditional Civil Society groups like Transparency Institute in Trinidad and National Integrity Action in Jamaica. Our societies need more groups like these and more think tanks to raise the level of discourse above that of the spin and political platform rhetoric. 

Conclusion 

My view, most respectfully, is that the Justice Improvement Project should be cast wider than appears to be contemplated in the letter of invitation and should be designed to influence the changes in attitudes required as much as the legislative and the other items specified in the letter and in this presentation. The changes in attitude can then, in the long run, influence the constitutional changes required.