The need and right to open government is self-evident. Our nation is based on the principle of a government by and for the people. A basic premise to this principle is that the people must be informed of what the government is doing for them.

This principle collapses when government conducts business outside the view and presence of the public. So, why has the Hawai'i Legislature exempted itself from open government under Hawai'i's Sunshine Law? The reasons given for the exemption include, first, the need for expedience due to legislative deadlines, and second, the Legislature's rules already ensure open government because they provide for 48-hour notice.

Here, expedience means: (1) no time for the required 48-hour notice because of the "short" legislative session and required legislative deadlines; and (2) to get things done with a minimum of opposition, controversy and delay.

Expedience is not a legitimate trade-off for open government. The reason a 48-hour notice is important is because the notice includes an agenda of subjects that will be discussed or acted upon at a given legislative proceeding. Without adequate notice, members of the public have no means to attend and address topics of interest to them and, likewise, the news media will not have the opportunity to inform the public of what government is doing.

The "no time for notice" argument is an unacceptable excuse. Open government is so fundamental that government should make the time for notice on all subjects. Massage the self-imposed deadlines to accommodate the notice requirement. Plan ahead so that all subjects are in the notice. Extend the legislative session, if necessary. If the subject is not on an agenda, then either it isn't important enough to be addressed because it wasn't important enough to warrant the foresight to be included in the notice; it is likely something the Legislature wants to pass under the radar and outside of the interested public's eyes; or it is not so important that it can't be presented properly later with notice.

Good government and good legislation should not be rushed and should not be conducted without transparency and public discussion. Open government is so important to our democratic system that expediency is never a justifiable excuse to avoid it.

The desire to conduct business with a minimum of opposition and controversy and/or to avoid delay is also not an excuse to compromise open government. While it's human nature to want to do things as easily and quickly as possible, this characteristic has no place in a democracy. The easiest way to get things done is in an absolute kingdom or dictatorship. However, we have chosen the more inconvenient and cumbersome system called democracy because we deem the benefits of the system to outweigh its detriments.

Nothing is so important to warrant expediency and convenience at the expense of public scrutiny. Not even so-called "emergencies."

Current legislative rules providing for 48-hour notice are impotent because they are voluntary and discretionary. There is no penalty for not applying the rules. The required 48-hour notice is conveniently waived under the rules by the presiding chair. Under present rules, the chair can conveniently waive the notice and agenda whenever it wants to bring up, or allow, a subject not on the agenda.

The danger with this common waiver practice is that members of the public, who have an interest in the subject, are not present to address or know what is being done. Whereas, had the subject been in the notice, they would have had the opportunity to attend the proceeding and provide input.

Also, waiving the notice agenda and allowing a non-agenda item to be discussed and acted upon does not allow the legislators, who are unfamiliar with the subject, to be prepared and independently informed of the matter.

The present ability of the Legislature to waive the current notice is a tool of expedience and convenience and, for the reasons above, should not be allowed. The practice breeds backroom deals and special interest sleight of hand. The Legislature should not be allowed to deviate from the notice agenda. To do so is unfair to the public who rely upon it in deciding whether to attend or not to attend a proceeding.

If the non-agenda subject is an emergency, then a unanimous vote of the legislators present should be required to allow the subject to be discussed and acted upon.

This unanimous threshold should not be a problem for a true emergency, but it should put the brakes on "political emergencies," i.e. matters which pertain to, or for the convenience of, a small populace or a special interest, and which do not pertain to the public's welfare as a whole.

What should be done?

1. Require the Legislature to fall under the Sunshine Law that it has imposed upon all other governmental entities, with proper penalties for violations of the law. (Legislators and their work are no more important or special than the rest of government and its work.)

2. Do not allow any "waiver" of notice except for true emergencies approved by a unanimous vote.

Our form of government is based upon an informed public and open government. This basic premise is far more important than any self-imposed deadlines or need for expedience.

So why would our legislators not want to conform to this basic principle of our government, but instead make excuses for not needing to be open under the law? Simple: to make their jobs easier and to allow backroom deals and special (and/or personal) interests to pass without public scrutiny.

But, this is not what the voters want or put them in office for.

Larry Lee, a Kailua resident, is a member of The Advertiser's Community Editorial Board and an attorney.