D emo c r a c y : R u l e o f l aw, r e p r e s e n t a t i o n a n d p a r t i c i p a t i o n accountability’.3 In more direct terms, the guidelines emphasised that ‘each institution must exercise responsibility and restrain in the exercise of power within its own constitutional sphere so as not to encroach on the legitimate discharge of constitutional functions by the other institutions’.4 The 2005 CHOGM recognised the principles as ‘an integral part of the Commonwealth’s fundamental political values as set out in the Harare Declaration’. Earlier that year the Commonwealth Secretariat with the four Commonwealth associations mentioned above had organised a Pan African Forum in Nairobi, Kenya. A Plan of Action for Africa on the Implementation of the Principles, the Nairobi Plan of Action, was agreed by all as the way to implement the principles in Africa. A colloquium of ministers, parliamentarians, judges, lawyers and legal academics, held in the wings of the Law Ministers Meeting in Edinburgh in 2008, produced the Edinburgh Plan of Action on the Development and Implementation of the Principles which further enlarged the plan to roll out the principles across the Commonwealth. In closing the colloquium the Commonwealth Secretary- General, Kamalesh Sharma, said of the principles: ‘They recognise the complex and interlocking network of the relations between the legislature, the executive, and the judiciary. They acknowledge the need for oversight mechanisms through which officers may be held responsible for their actions.’ He added: ‘These principles are designed to help the business of fair, efficient, transparent, responsive government – government for the people. The confidence, belief and trust that people have in their government – that is the ultimate litmus test.’5 Events in the Commonwealth since the adoption of the Latimer House guidelines 15 years ago and the principles ten years ago have continued to underline the need to enhance an effective means of implementing the principles. Their violation has resulted in political and governance challenges in many Commonwealth countries and diminished the confidence of their citizens in state institutions. In his book, Lawless World: Making and Breaking Global Rules, Professor Philippe Sands QC pointed to a world that was moving backwards when it came to respect for international norms and principles. The Commonwealth has not been immune to this. The United Kingdom Foreign Affairs Committee report on the future of the Commonwealth, published earlier this year, says that they ‘heard disturbing evidence that the badge of respectability has become tarnished and that the Commonwealth’s best years as a promoter of democracy and human rights in its own member states are behind us’.6 The guidelines called for an effective monitoring procedure to be devised to assess the good and bad practice in the Commonwealth7, and the CPSU8 and Electoral Reform International Services report on democracy in the Commonwealth9 recommended a mechanism and process for regular health checks of the condition of democracy in each member state. In addition, the Eminent Persons Group recommended the creation of a Commissioner for Democracy, the Rule of Law and Human Rights. Whilst international organisations such as the UN, OECD, Transparency International, the World Bank and UNDP have developed monitoring systems in particular sectors no co-ordinated attempt has been made to assess the implementation by respective Commonwealth governments of their commitments to promote democracy and good governance, human rights and the rule of law. The Latimer House Working Group – consisting of representatives of the CLA, CLEA, CMJA and CPA as well as representatives of the Commonwealth Secretariat’s Legal and Constitutional Affairs Division (LCAD) – meets regularly to consider evidence of breaches of the fundamental values in Commonwealth jurisdictions. The failure of some member states to implement the principles they endorsed in 2003 continues to cause long-term damage to good governance in their jurisdictions and to the standing of the Commonwealth internationally and within member states. The Commonwealth Charter, which was adopted by Heads of Government in December 2012, specifically acknowledges the importance of the relationship between the organs of state. Article VI states: ‘We recognise the importance of maintaining the integrity of the roles of the Legislature, Executive and Judiciary. These are the guarantors in their respective spheres of the rule of law, the promotion and protection of fundamental human rights and adherence to good governance.’ Whilst constitutions provide a structure for the relationship between the three branches of government, including limitations on their powers, it is crucial to ensure that their citizens are protected from the misuse and abuse of power. In the words of Chief Justice Bhagwati: ‘There are a few institutions which are vital to the maintenance of democracy and the rule of law. They constitute the life breath of the democratic way of life and the supremacy of law. Drain away this life breath and democracy will perish, the rule of law will end.’10 Whilst some jurisdictions have made efforts to separate the roles of the legislature, executive and judiciary, to date only one jurisdiction in the Commonwealth has progressed any implementation of the principles. In 2008 the Australian Capital Territory Legislature instigated an enquiry into the implementation of the principles throughout its territory. The Latimer House Working Group were consulted and made a formal written submission to the legislature. The Standing Committee on Administration and Procedures issued a report in August 2009.11 Following the appointment of a consultant to examine practical ways of implementing the principles in the territory a report was published in November 2011 recommending action to improve good governance in the territory in line with the principles.12 The Latimer House Working Group considers Commonwealth Governance Handbook 2013/14 20
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