When I was first approached by Honorable Andy Daniel, Speaker of the Saint Lucia House of Assembly, to present on the topic “Public Consultation in the Legislative Process in Saint Lucia – A Historical Perspective,” I accepted without hesitation. Lest you are of the view that my prompt response was contingent upon any altruistic motive on my part, let me just as promptly disabuse your collective minds. In truth, my quick response was actually due to the fact that bearing in mind what was asked of me, I knew my presentation would be a maximum of ninety seconds.
So let me, in the words of the late Forbes Burnham, be “pellucidly clear,” the sad reality we have little choice but to accept is this: whatever other accusation which can be levelled at successive Saint Lucian governments, no one can accuse them of ever having public consultation on Bills before, during or after they are brought to the Parliament. So, yes, we have historically had absolutely no public consultation on matters which are discussed in the country’s legislative chambers and which things may have the most negative of impacts on the society as a whole.
The truth is that the Bills are seen by parliamentarians who are not ministers, in some cases, a mere seventy-two hours prior to them debating it. Let me repeat this; in our Parliament, it is not unusual for Members to receive the Bills on a Friday with the Sitting of the House of Assembly set for the following Tuesday. So, in a system when the Members are themselves not consulted what hope is there for consultation with the public at large? Consider further that even in the absence of such consultation, on the Tuesday of the Sitting, the person in whose name the Bill stands then seeks to invoke the relevant Standing Order to suspend Standing Order 48 (2) to allow the Bill to go through all three stages at the same Sitting.
The session following this one deals with “The law-making process—opportunities for public engagement.” This will be chaired by the most capable Dr. Rosemarie Husbands who holds the distinction of being Saint Lucia’s first female Senate President and the first person, male or female, to have held the positions of Speaker of the House and Senate President. Whilst she will tell you what ought to happen in the law-making process, I, will tell you what does happen. I promise her that I shall not trespass into her domain.
In a House debate some years ago, there was an amendment to the Banking Act and during the debate an opposition member pointed out that section cited in the amendment was incompatible with the section of the substantive Act that it sought to amend. To remedy this, it was agreed that debate on the Bill would be halted and adjourned to a subsequent Sitting. The Senate met the following week and passed the Bill without amendment.
How, you might ask yourself, was it possible for the Senate to have passed without amendment a Bill which one week earlier the House had deemed incompatible with the parent Act. Simple. The substantive Act which the House had reviewed had itself already been amended and because of the limited time given to the House members they had been unable to have researched this. The Senate, with the additional week, had sufficient time to study and research the amendment and realized the said amendment was in fact proper.
That debacle would have been avoided had the proper time frame being given to the House Members. Let us now consider how the face of our Parliament has changed and why, because of this, today, it is even more important that Bills be put out for public consultation prior to making their way into the Parliament’s chambers.
From Statehood to Independence to the mid-eighties, our Parliament consisted of many lawyers, both in the upper and lower chambers. Those lawyers brought their own professional skills to the debate; their legal scholarship allowed them to be able to discover errors whether they were improper drafting or if they conflicted with existing legislation to whether the rights of individuals were being violated. Their knowledge of the law allowed for them to counter the deficiencies brought about by the lateness of their procurement of the Bills.
Over the next three decades the face of Parliament changed to the point where in the 2011 to 2016 Parliament the predominant profession was no longer lawyers, but instead teachers. Of the current 29 Parliamentarians—18 including the Speaker in the House and eleven in the Senate—only four are lawyers. And of that four, two are the respective Presiding Officers who are themselves unable to debate. So, in effect in the current configuration only two lawyers debate the Bills which are brought late and gives little time for analysis prior to the Sitting.
I am not here suggesting, not by a long stretch, that lawyers make better Parliamentarians than do other professions. Not at all. Still, we cannot ignore the reality that Bills are largely legal things and that often, more than mere common-sense is required to unearth legal errors. Take another more recent example when during the debate on a very sensitive amendment, very sound legal advice was proffered by one of the lawyer Parliamentarians only to have this disregarded by the laymen Parliamentarians. As fate would have it, it took not the sound legal advice, but instead an unforeseen error in the other Chamber which in turn caused the defeat of the Bill. But can something as serious as law-making be left simply to those we have elected? I respond in the negative.
I go further and state that the authors of the Standing Orders themselves recognized that this ought not to be the case. For why else would there be SO 48 (2) in the House and 49 (2) in the Senate which mandate intervals of 4 days and 5 days, respectively, between the first and second readings of a Bill? I can already hear the seasoned Parliamentarians saying that the same Standing Orders make provisions for the suspension of 48 (2) and 49 (2) to allow all three readings at the same Sitting. And I would respond that the abuse of this provision is as a direct lack of understanding on the one hand and the refusal of the Presiding Officer to stand up and be counted, on the other hand. But that aspect is for another time and place.
The Standing Orders, 49 (3) to be precise, also state that all Bills need to be Gazetted, more proof, in my view at least, that the authors of the SO intended for some public knowledge of what was taking place in Parliament. I am fortified in my view by the fact that the Standing Orders states “Bill” and not “Act of Parliament”. That distinction is critical.
There are many who when asked about Parliament simply reference the Senate and House of Assembly. That response is common even amongst Parliamentarians. But it is in error. I posit that for the proper answer to the question what is Parliament one must of necessity refer to the Saint Lucia Constitution Order 1978. There, at section 23 (1) to be precise, the answer is clear, straightforward and unambiguous. And I quote: “There shall be a Parliament of Saint Lucia which shall consist of Her Majesty, a Senate and a House of Assembly.” Clearly, then for a Bill to become an Act of Parliament, it must of necessity find favour with not simply the Senate and the House of Assembly, but additionally, the signature of Her Majesty via her local representative, the Governor General.
So, if the said Standing Order, 49 (3), meant for the Act to be affixed to the Gazette it would have said so. It is my firm view that the very fact it referenced the Bill, suggests to me it wished for the Bill and not the completed Act be placed in the Gazette and by extension, in the public domain. More proof then that public consultation was a primary focus of the framers of the Standing Orders and it is something they expected to be done.
Earlier, I commented that the next session would deal with what ought to be, regarding the law-making process, but in this session I want to briefly deal with what actually happens. Contrary to what should happen with the Clerk of Parliament being integrally involved from the very beginning, indeed as early as to quote SO 49 (1) “from the draft handed to him by the Member in charge of the Bill”, it goes on to say that the Clerk shall “satisfy himself that (a) the Bill is divided into successive clauses numbered consecutively; (b) the Bill has in the margin a short summary of each clause; and (c) the provisions of the Bill do not go beyond its title”, that is not the case.
What instead happens is the Clerk gets a ready-made document which in keeping with SO 49 (2) simply hands these over to the Members. I have already told you that oftentimes these do not arrive until as late as three days before the actual Sitting.
Whilst I have thus far found much fault with the Parliament, civil society organisations themselves do not come away unscathed for they have been most lax in demanding what the rules unambiguously state they are entitled to. In this connection it was most heartening to hear the recently elected President of the Bar Association declare her intention to ensure the Bar gets to view and possibly review, proposed legislation before it gets to the Parliament. Whilst she must be commended and supported, I issue just one caution and it is this. In a previous Parliament the Bills were sent to the Association and not a single comment was received by the Clerk.
To those NGOs which seek public consultation and circulation of Bills prior to debate in the Parliament I can do no better than quote my departed friend and Former Chief Justice of the OECS Supreme Courts, the Rt Hon Sir Vincent Floissac who, whilst addressing the Saint Lucia Media Workers Association, as it then was, on the law of defamation stated, and I quote: “The law in this regard, is your best friend.”
Thank you, Mr. Chairman and members, for your listening ear.
The preceding was delivered by the author at last week’s symposium on Enhancing Democracy Through Public and Civil Society Engagement in the Legislative Process.
