Presentation by Charles Wilkin QC on June 8, 2013 to the OECS Bar Association Continuing Legal Education Seminar on Public Discourse/Opinion/Commentary on Socio-Political Issues.
Very few lawyers here venture to open their mouths on socio-political issues. That is sad and bad for our society. I hope that the same does not apply elsewhere in our sub-region.
Lawyers are by our training, our standing in the community and our role, leaders of the society. We are among the highest earners. Each of us has a civic and moral duty to use our training and resources to contribute to the development of our respective countries. That duty is not limited to our law practice but extends to every facet of community life. Silence is not an option. In the same way that we pledge fearlessly to represent the lawful interests of our clients we should fearlessly champion the broad interests of our respective communities.
Our societies are advancing but cannot by any stretch be classified as sophisticated in terms of discourse on socio-political issues. Not enough people participate publicly in such discourse. We as lawyers operate daily in an adversarial system in which we disagree respectfully and make our case firmly. But we live in communities where political loyalties too often trump reason, objectivity and fairness. Through our experience of legal practice we are able to bring those qualities to the public discourse.
So many of us are reluctant to do so for fear of offending the political directorate. Too many lawyers are smug in the comfortable living which the profession affords them.
We are taught legal principles and practice in a rule based system that balances the scales of justice. The society is meant to be based on legal and other principles with checks and balances. Too often though the principles are applied only where they coincide with the interests of those in control and the prevailing practice is that the spoils go to the victor. When you add to the mix the prevalence of political patronage and entitlement and the “me” mentality now firmly inculcated in our culture we have the potential for the type of conflict that we see elsewhere in the world and think could never happen to us.
In addition to the exercise of our civic and moral duty we should consider the personal interest we have in a stable and peaceful society. We are facing serious threats to that stability. The main threat lies in the governance practices which have been adopted and the constitutions we have chosen.
Lawyers are particularly qualified to speak on the governance of our society. When we do not the voices heard are mainly the political voices which are for the most part biased and self interested.
The prevailing governance practices are based on the bigoted philosophy (if you can call that a philosophy) that party trumps everything else and the leaders can do no wrong. The effect of that bigotry is exacerbated by our flawed constitutions based on the Westminster model. That model is inadequate for our small societies. The effect of our constitutions has been to create constitutional dictatorships with overwhelming powers vested in the prime minister. The separation of powers on which the Westminster system is premised is not effective in our context. The small numbers of representatives in our legislatures means that a majority of legislators are almost always members of the executive blurring the separation of those branches of government. And in the rare cases, as in St. Kitts and Nevis at the moment, when there is a minority government, we have to rely on a convention rather than the letter of the constitution to make the constitution work. Conventions only work where there is respect for them. In St. Kitts and Nevis there is selective respect. The convention that the queen consults the prime minister on the appointment of a governor general is regarded as sacrosanct but the far more important one that a motion of no confidence should be given priority in the agenda of parliament has been flagrantly ignored for 6 months.
We have been very fortunate to have created a regional court which has saved our democracy thus far but that democracy is still tenuous at best and should not be taken for granted. We need constitutional change in order to strengthen that democracy. Without such change it is only a matter of time before one or more of our OECS countries becomes a banana republic. Lawyers are best suited to lead the public discourse on the changes required. We should do so objectively and fearlessly.
Lawyers are meant to be guardians of the rule of law. That role extends beyond the courts. The meaning of the rule of law must be explained to our people and respect for the rule of law must be advocated widely in our societies by all public means. We should be at the forefront of such advocacy.
We should also be at the forefront of the debate on social ills which require to be cured by legislation. We should participate in the framing of such legislation by promoting and engaging in public discourse on the issues and the solutions.
I do not know what applies in the other OECS territories but in St. Kitts and Nevis we rarely have the benefit of advance notice of government policy by way of white papers to stimulate debate on matters to be brought to parliament. The only one I can remember is that on education a few years back. Over a year ago the ILO funded a consultant to advise on a new labour code. Six weeks ago, despite the tradition of a strong tripartite consultative process we were presented out of the blue with a draft bill of 150 pages and given a month to respond to it. The ILO consultancy was about to expire and all of a sudden there is political advantage in the new code. The practice of producing white papers is a non enforceable convention which should be made law.
Lawyers have to be proactive in the face of anti-democratic practices such as those just outlined. Until our constitutions can be changed to give the conventions the force of law and not the option of the executive we should be advocating observance of them and enlightening the public to their existence. We should not wait until a dispute arises. At that time the issues become clouded with political fervour and irrationality.
We also in our own self interest need to address the issues of growing violence, aggression and other negative attitudes which have crept into our culture and the influences, external and internal, which have contributed to the anti-social behavior spawned by those attitudes.
Lawyers can also play a role in raising the level of public discourse. I hope that level is higher in the other OECS territories but too much of the debate in the National Assembly in this country resembles that in a fish market. The utterances on the political platforms are often worse.
That is what we are presenting to our young as leadership. Lawyers can by engaging in debate outside of the realm of politics show our communities the way.
A few thoughts on ways in which lawyers can play this role. There is of course access to the media. One radio station has been hounding me to get the Bar Association to host a regular programme on legal and other topics of the day. I intend to advocate for this in the year ahead. The whole media – print, audio, visual and electronic, is wide open for us individually and as a body. We seem to have forgotten the pioneering effect of the John Benjamin case. John should be our role model in this regard.
There are not many civic organizations in place, at least not here, through which lawyers can engage in public discourse. I would urge our younger members to consider the establishment of think tanks which are well suited to our informal culture.
There are also international advocacy groups which we can join. One which should be encouraged here is Transparency International which has a strong unit in Trinidad. It publishes a corruption index rating countries. St. Kitts and Nevis are not included but corruption is undoubtedly and alarmingly growing here.
I urge you also to engage the civil service. We tend to aim our lobbying at the political level and too often ignore the civil service. We very rarely hear from senior and middle level civil servants as they are for the most part cloistered in their politically dominated cocoons. I make a point of interacting with them whenever I get the occasional opportunity. I have found such interaction refreshing. They express in direct interaction far more than they dare ever do publicly.
I regard that type of interaction as important also because some of these public servants will become leaders or otherwise influential in our society and they do albeit in limited manner have the ability to influence government policy. The public service is so large and all pervasive that access to it is important in influencing societal progress and change.
We should also interact with other professions to stimulate them to participate in the public discourse. In St. Kitts and Nevis the medical profession is as silent as is ours. Yet our two post independence prime ministers have come from that profession. The only pronouncements you ever hear on health issues come from the Ministry of Health and as with all pronouncements from government politics overrides all other considerations.
In closing, I comment that unless the educated and professional people in our societies play an active role in the public discourse we will degenerate as societies whatever economic advancements are made. If you succumb to the fear of being labeled politically then you will have given up all the independence and security which you gained by entering the profession. And last but by no means least lawyers have a particular duty, in addition to their advocacy of social causes and good governance, to show an example by how we live and practice and how we fulfill the trust that our clients place in us in representing their interests and in dealing with their money.
8th June 2013.