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The Commonwealth Latimer House Principles Facilitator's Guide

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The Commonwealth Latimer House Principles Facilitator's Guide The Commonwealth Latimer House Principles Facilitator’s Guide The Commonwealth Latimer House Principles Facilitator’s Guide CWT_LHP-FG_Internal pages-Final.indd 1 07/07/2017 11:37:34 CWT_LHP-FG_Internal pages-Final.indd 2 07/07/2017 11:37:34 The Commonwealth Latimer House Principles Facilitator’s Guide CWT_LHP-FG_Internal pages-Final.indd 3 07/07/2017 11:37:34 Commissioned by the Commonwealth Secretariat. Drafted by Dr Karen Brewer, Secretary-General of the Commonwealth Magistrates’ and Judges’ Association (CMJA) and CMJA Editorial Board members Dr Peter Slinn, Chairperson, and H H Judge Keith Hollis, assisted by the Latimer House Working Group. Headnotes of Case Law examples are reproduced with the kind permission of Reed Elsevier (UK) Limited trading as LexisNexis, publishers of the Law Reports of the Commonwealth. Commonwealth Secretariat Marlborough House Pall Mall London SW1Y 5HX United Kingdom © Commonwealth Secretariat 2017 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording or otherwise without the permission of the publisher. Published by the Commonwealth Secretariat Edited by Joan Ross Frankson Typeset by Cenveo Publishing Services Cover design and illustration by Rory Seaford Design Printed by xx Views and opinions expressed in this publication are the responsibility of the authors and should in no way be attributed to the institutions to which they are affiliated or to the Commonwealth Secretariat. Wherever possible, the Commonwealth Secretariat uses paper sourced from sustainable forests or from sources that minimise a destructive impact on the environment. Copies of this publication may be obtained from Publications Section Commonwealth Secretariat Marlborough House Pall Mall London SW1Y 5HX United Kingdom Tel: +44 (0) 20 7747 6534 Fax: +44 (0) 20 7839 9081 Email: [email protected] Web: www.thecommonwealth.org/publications A catalogue record for this publication is available from the British Library. ISBN (paperback): 978-1-84929-170-5 CWT_LHP-FG_Internal pages-Final.indd 4 07/07/2017 11:37:34 v Foreword This Facilitator’s Guide provides a framework to assist all who work to encourage understanding and practical application of the principles of ethical and governance separation of powers, and ways of achieving this, for example through dialogue between members of the executive, legislature and judiciary. It adds to the resources made available by the Commonwealth Secretariat, which also include the guides, templates and model laws which are offered by the Commonwealth Office of Civil and Criminal Justice Reform and provide the focus for its work. Our Commonwealth Principles on the Three Branches of Government, generally known as the Latimer House Principles, are fundamental to the wider values and principles of the Commonwealth Charter. By making training materials and action points available in readily accessible format, our aim is to facilitate wider implementation of the Latimer House Principles and broader adherence to them. In recommending this Guide for study and use, I encourage all who draw on it for guidance and support to be mindful of the need to build and continually reinforce integrity and impartiality in public life, and to maintain the delicate balance of independence and interdependence between the institutions that combine to deliver accountable and responsive democratic governance and administration. The Right Hon Patricia Scotland QC The Secretary-General of the Commonwealth CWT_LHP-FG_Internal pages-Final.indd 5 07/07/2017 11:37:34 CWT_LHP-FG_Internal pages-Final.indd 6 07/07/2017 11:37:34 vii Preface The Governance and Peace Directorate of the Commonwealth Secretariat supports the promotion of democracy and good governance in the Commonwealth. Its work includes monitoring and analysing political developments, observing elections, providing technical assistance to strengthen democratic institutions and supporting the Secretary-General’s good offices to promote and protect Commonwealth values and principles. Adopted in 2003, the Commonwealth (Latimer House) Principles delineate the relationship between the three branches of government (Executive, Legislature and Judiciary) and provide guidance on the separation of powers. Political and governance challenges in Commonwealth countries, often arise from imbalances in, or an absence of, separation between the three branches of government, whether deliberate or unintentional. Addressing these challenges requires a unique methodological tool to foster dialogue and understanding between the three branches of government. In 2012, the Secretariat commissioned partner organisations of the Latimer House Working Group, comprised of the Commonwealth Lawyers Association, Commonwealth Legal Education Association, Commonwealth Magistrates and Judges Association, Commonwealth Parliamentary Association and the Commonwealth Secretariat, to develop such a unique tool in the form of two training modules – a comprehensive module to examine all aspects of the Principles, and an abridged version to introduce the concepts. The modules were conceived as a Commonwealth tool to promote awareness and dialogue among stakeholders within member countries on political and governance issues related to accountability, transparency and the separation of powers between the three branches of government. The Toolkit’s methodology goes beyond training and learning. It aims to utilise dialogue, mediation and consensus building skills to promote active facilitated discussion and problem solving. This methodology creates an environment of mutual respect and knowledge sharing that enables practitioners to identify challenges CWT_LHP-FG_Internal pages-Final.indd 7 07/07/2017 11:37:34 viii Preface and find mutually acceptable ways of resolving them. The Toolkit therefore constitutes a strong foundation on which to build the governance capacity of and enhance the functional relations between Commonwealth Executives, Legislatures and Judiciaries. I am confident that it will be effective in expanding understanding and implementation of the Commonwealth (Latimer House) Principles. Developing the legal concepts of the Principles into a learning tool involved complex challenges, a significant amount of time and a great deal of patience on the part of all who were involved. The Secretariat is grateful to the following staff of the 2014-2015 Good Offices Section, Nita Yawanarajah and Dr Tres-Ann Kremer, and from the Rule of Law Division, Jarvis Matiya and Mark Guthrie, for initiating and steering the Toolkit to completion. We are also grateful to the Commonwealth Magistrates’ and Judges’ Association (CMJA) and its Editorial Board for co-ordinating and consolidating the contributions from the Latimer House Working Group to produce the first draft. My thanks go to members of the Latimer House Working Group for sharing their knowledge and expertise in this effort. Katalaina Sapolu Director, Governance and Peace Directorate Commonwealth Secretariat CWT_LHP-FG_Internal pages-Final.indd 8 07/07/2017 11:37:34 ix Contents Foreword v Preface vii 1. Introduction 1 – Programme 1 – Objectives 2 – Anticipated outcomes 2 Section One: Preparing for the Dialogue 2. Preparing for the Programme 9 – Commonwealth Secretariat Needs Assessment 9 – Scoping of the Issues 9 3. Guidelines for Organising and Managing the Working Groups 12 – Getting the Best out of the Dialogue 12 Allocating practitioners to groups 12 Developing the recommendations 13 Dealing with the discussion 13 4. Setting the Agendas 15 – Comprehensive Module 15 – Abridged Module 20 Section Two: Interrogating the Principles Session by Session 5. Interrogating the Principles Session by Session 25 – Session 1, Introduction: The Separation of Powers in a Democratic Country 26 – Session 2, Principle I: The Three Branches of Government 29 – Session 3, Principle II: Parliament and the Judiciary 37 – Session 4, Principle III: Independence of Parliamentarians 45 – Session 5, Principle IV: Independence of the Judiciary 54 – Session 6, Principle V: Public Office Holders 64 – Session 7, Principle VI: Ethical Governance 73 – Session 8, Principle VII: Accountability Mechanisms 80 – Session 9, Principle VIII: The Law-Making Process 88 – Session 10, Principle IX: Oversight of Government 96 – Session 11, Principle X: Civil Society 104 CWT_LHP-FG_Internal pages-Final.indd 9 07/07/2017 11:37:34 x Contents – Session 12, Principle XI: Final Recommendations, Wrap-Up and Programme Report 111 Section Three: Resources Evaluation Forms 115 Case Law Quoted 122 Bibliography and Organisations 297 CWT_LHP-FG_Internal pages-Final.indd 10 07/07/2017 11:37:34 Icons Preparation: items needed in order to proceed with the section Reference: key background information, a pull-out of which can be found at the back of the book Information: key information that is essential for a particular section Questions: review questions about the understanding of the section Time: the recommended amount of time to complete a particular section CWT_LHP-FG_Internal pages-Final.indd 11 07/07/2017 11:37:34 CWT_LHP-FG_Internal pages-Final.indd 12 07/07/2017 11:37:34 1 1. Introduction The Toolkit on the Latimer House Principles has three components: • A handy copy of The Latimer House Principles (or Pocket Principles) that fits comfortably into a coat pocket, handbag or briefcase for easy reference, anywhere and at any time. • The Practitioner’s
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