COMMENTARY ON THE RULE OF LAW – CHARLES WILKIN QC – MAY 10, 2018.
The basic principle of the rule of law is that no man or woman is above the law. Democracy does not work well without the rule of law. Elections alone don’t constitute democracy. This is an important lesson from the current controversies in the US which has a democratically elected leader who is at loggerheads with the rule of law.
There are many countries which have elections but operate under the rule of man which is the opposite of the rule of law. We should know that only too well as we had a close call. Lest we forget we should follow carefully what is happening in the US.
One organization which reports on the rule of law across the world is the World Justice Project (WJP). WJP has just released its 2017-18 Index which rates adherence by 113 countries to the rule of law. St. Kitts and Nevis have an overall rating of 28 in the 2017-18 Index, ahead of all other Caribbean nations. That seems at first glance like a cozy position of which we can be proud but deeper analysis shows we can do much better.
WJP uses eight tenets to measure the performance of countries in the Index. [These are: Constraints on Government Powers, Absence of Corruption, Open Government, Fundamental Rights, Order and Security, Regulatory Enforcement, Civil Justice and Criminal Justice.] I will address each of these in relation to St. Kitts and Nevis and give the WJP ranking in each category.
1. Constraints on Government Powers. This is the first factor considered by WJP, for good reason. It recognizes the human inclination to get carried away with power and the enormous powers exercised by Governments. Government power in St. Kitts and Nevis lies in effect with the Prime Minister. He controls two of the three branches of Government. He appoints and can fire members of the Cabinet. He recommends the Governor General. He is allowed to control the Civil Service and other public bodies. He controls most of the land on St. Kitts. As Government is majority shareholder he has leverage on the National Bank. Our system, and that of the other OECS countries, is referred to quite rightly by Simeon MacIntosh, a constitutional scholar of blessed memory, as “dictatorship by Prime Minister”. Sir Fred Phillips, another great constitutional scholar of blessed memory, who served as our first Governor under the 1967 constitution and chaired two constitutional reform commissions in the late 1990s, referred to the powers of the Prime Minister in this way: “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 on every board operating in the public domain”.
So constraints on Government powers are in our case largely constraints on the Prime Minister. What are the constraints on the powers of the Prime Minister? The four main ones are meant to be the Motion of No Confidence, elections, the Courts and the media. We see what happened to the MONC. We know the flaws in our electoral system. These include the abuse of voter registration provisions, the absence of campaign finance regulation and the lack of any semblance of independence in the Boundaries Commission which invites gerrymandering. In these circumstances we are blessed that we have an independent Supreme Court which has saved democracy and the rule of law time and time again, the last time being in 2015 when the Prime Minister of the day having trampled over the MONC tried and very nearly succeeded in doing the same with the electoral system. We are also fortunate to have a growing media and the availability of social media but there is still a way to go towards a strong, independent media. We see from the US the vital role played by the media.
We could do a lot better in constraining Government power by (a) limiting the Prime Minister to two terms (b) providing greater entrenchment to the office of the Governor General (c) enacting legislation to provide greater accountability such as campaign finance legislation, proper procurement legislation and Integrity in Public Life legislation. (d) The powers of the Auditor General should also be enhanced and that office should be given the resources to exercise its intended power to investigate the use of Government money and resources. (e) The Electoral Commission needs to be properly funded to do its constitutional duty. (f) The Boundaries Commission should be made transparent. These are but some of the measures that if taken would enable us to say that we genuinely conform to the rule of law and improve our ranking from 28.
2. Open Government. This goes in tandem with Constraints on Government. Here our ranking is abysmal at 92. That is 23 places below Russia and 36 places below the next lowest OECS country. That is a disgrace but not surprising. The ranking reflects the fact that Government is a closed shop. Government does not publish the vast majority of its policies. Reasons for decisions are hardly ever given. You have to ask nicely to get them. Two of the biggest funds of public money – the Social Security Fund and the SIDF are treated like secrets. Government monopolizes the state media. Those are some of the factors which account for our abysmal ranking.
Another international report just out – the World Press Freedom Index – is not very complimentary about us. That report assesses that the media in the OECS is “under tight surveillance”. That makes us seem like Russia or China not like the beacon of democracy that we pretend to be. The report warns of the potential for politicians to hijack the media.
The passage of the FOI Act could be a step forward but I reserve further comment until I have read it, if and when it is gazetted and becomes law. The devil is always in the details. I gather that the Government has said that it will take some time to bring it fully into effect. Your bet is as good as mine that it will be brought into full effect before the next election. But even if it is not you expect Team Unity to say that it fulfilled its 2015 election promise. I expect the same to happen with the Integrity in Public Life Act and the regulations to the Procurement Act.
3. Absence of Corruption. It is good that WJP thinks we are at number 25 in the world in Absence of Corruption. But Open Government overlaps this area. Corruption is thought to be absent if it is not disclosed. The more open a government is the more likely it is that corrupt practices will be disclosed. And one of the biggest sources of corruption across the world is in government contracts. We have a half baked Procurement Act introduced by the Labour government in 2012 but never brought into full effect because neither that government nor the present one has seen fit to introduce the necessary regulations. So I am sure that when we have proper procurement practices and an effective Freedom of Information system and an effective integrity in public life system and campaign finance legislation WJP will be able to say with greater confidence what our ranking really is.
4. Fundamental Rights. Our ranking of 21 in this factor is reflective of the relative strength of that part of our constitution which guarantees those rights and the court system which enforces them. The major failing here is in the lack of respect by Government for the fundamental right to information.
5. Order and Security, Our ranking of 25 does not say much for the rest of the world. Disorder, ill-discipline and poor attitudes are too prevalent. Look around you every day and you see that. These stem in large measure from the entitlements mentality which has grown out of the tribal politics with governments routinely rewarding their supporters and disadvantaging their opponents. This reflects also in the attitude to work. Productivity is low with the result that more and more foreigners are coming in to join the workforce.
The disorder, ill-discipline and poor attitudes have contributed to the gang culture and high murder rate. The community is not setting a good example to its young people. The community is expecting the security forces to work miracles without acknowledging its responsibility in the maintenance of law and order. Our society needs to take deep reflection on improvements in this area. If not the security situation will get worse.
6. Regulatory Enforcement is a mixed bag. It is good in some areas and non existent in others. In others it is subject to the effects of the tribal politics. In many areas regulations exist but are not enforced. We rank at 27 in this area.
7. Civil Justice. Not surprisingly our best ranking is at 17 in this area. Our courts deserve this credit. I am sure that our ranking will improve even more when the selection and terms of employment of Magistrates make that Court, like the Supreme Court, truly independent of Government.
8. Criminal Justice. Here we rank lower at 32. The major reasons are weakness in crime detection contributed in large measure by the lack of co-operation by the public with law enforcement, delays in the criminal justice system and the very poor prison conditions. The delays and prison conditions are being addressed but the attitude of the public remains the biggest block.
I end with a very pertinent quote from the historian Timothy Snyder which we could well heed. “The Constitution is worth saving, the rule of law is worth saving, democracy is worth saving, but these things can and will be lost if everyone waits around for someone else.” We need to end the tribal politics which militate against democracy and the rule of law. We should instead focus on issues and principles, not men. We need far greater participation in the debate on issues. We need to have referenda on major policy decisions. The referendum is the best method of people power. We have a relatively well-educated populace. The professions are strong in number. The business community is growing. The Church is influential. But still too many people who can contribute are reticent or afraid to express their views. Too many organs of Civil Society love to have lunches and dinners and bazaars but make no contribution to the enhancement of democracy and the rule of law. Too many of the same people are simply yes men and women when they serve on Government bodies. We have a long way to go.