Commonwealth Law Bulletin Abstracts - September 2009

Judgment Delayed is Justice Denied: Delays in Delivering Judgments in the Eastern Caribbean

1 September 2009

Denys Barrow

Commonwealth Law Bulletin Vol. 35, No. 3 (2009)

The central premise of this article is that unreasonable delay in delivering judgment represents the denial of justice. The author observes that this is a matter of increasing concern in the Eastern Caribbean. Beyond the denial of justice to individual litigants which inescapably brings the country’s legal system into disrepute, the author considers the now more direct and palpable consequence – that the State may be exposed to liability by a litigant bringing a claim against it for breach of constitutional rights. Privy Council Appeals from Belize and Trinidad and Tobago are cited in support of this proposition. The author considers too the possibility that unreasonable delay in the delivery of judgment may amount to judicial misconduct so as to justify the removal of the delinquent judge from office. Reference is made to the “unusual, if not unique” provision of the Guyana Constitution which provides, in essence, that a judge may be removed from office for persistently failing to deliver timely judgments. The recent trend towards prescribing time limits for the delivery of judgment is also explored, with specific reference to the proposed amendments to the Belize Constitution and the Guyana “Time Limit for Judicial Decisions Bill 2008”. In contemplating the way forward, the author explores the reasons for delay and offers suggestions for improvement.

Is it Time to Rebrand Legal Professional Privilege in EC Competition Law?: an Updated Look

1 September 2009

Gavin Murphy

Commonwealth Law Bulletin Vol. 35, No. 3 (2009)

The scope of legal professional privilege (“LPP”) in EC competition law remained unchanged after the European Court of First Instance (the “CFI”) ruled on 17 September 2007 that the privilege would not be extended to written legal advice communications between clients and in-house lawyers, regardless of whether the lawyer is a member of a bar or law society. The CFI judgment confirmed existing EC jurisprudence, which limited the privilege in 1982 to communications made by or to independent external lawyers in private practice in one of the EU Member States. The Akzo decision also explained the procedure that the European Commission (the “Commission”) must follow in the future when documents are discovered during an inspection (“dawn raid”) and privilege is claimed by the target of the investigation. Furthermore, the Akzo decision clarified the possible application of the privilege to preparatory documents.

This paper examines the Akzo decision in detail and suggests that, given its current application, the privilege in EC competition law should no longer be referred to as legal professional privilege, which is an English common law expression equally covering legal advice communications to and from in-house lawyers and private practitioners and their clients (as well as litigation privilege). The EC term should be renamed to more accurately reflect its judicially-delineated limits, thereby enhancing legal predictability and fostering a better awareness of its precise reach. The paper also considers the current state of the law on privilege in Canada, England and Wales, and Scotland; as well as featuring a brief overview of the privilege provisions in all EU Member States.

Is there a Need for a Human Rights Based-approach to Health in Uganda?

1 September 2009

Tenywa Aloysius Malagala

Commonwealth Law Bulletin Vol. 35, No. 3 (2009)

Health is a fundamental human right that has great impact on the full realisation of other human rights including economic rights. In order to promote the health of the people and to increase the productivity of the population in a more sustainable way, there is need to do more than simply providing medical facilities and preventing and treating ailments. There is a need to address the injustices that occur in the relationships between the health service providers and the patients. Crucially, there is a need to address the stigma and discrimination, and all other health-related issues that hinder the full realisation of the right to health of vulnerable members of society in Uganda. A human rights-based approach to health is perhaps more likely to be effective, inclusive, equitable, sustainable and efficient in addressing such obstacles than other approaches. This approach calls for: a) recognition of the national and international human rights framework; b) empowerment and active participation of all stakeholders in all matters pertaining to their health; c) accountability; d) equality and non-discrimination; and e) progressive realisation of the right to health. Thus, human rights principles must guide the analysis, design, implementation, monitoring and evaluation of health promotion programmes in Uganda.

Role of Judicial Education in India

1 September 2009

Geeta Oberoi

Commonwealth Law Bulletin Vol. 35, No. 3 (2009)

The varied activities undertaken by Judicial Education institutes make it difficult to give a universal definition to the term ‘Judicial Education’. The article argues that Judicial Education is an indispensable tool and proceeds to describe a number of inter-connected activities falling within the remit of Judicial Education in India.

The Doctrine of Ultra Vires and the Protection of Shareholders, Creditors and Third Parties in Ghana: A Balancing Act

1 September 2009

Ernest Owusu-Dapaa and Samuel Adarkwah

Commonwealth Law Bulletin Vol. 35, No. 3 (2009)

The doctrine of ultra vires was at common law invoked to frustrate expectations of innocent parties that entered into transaction with companies outside their object clause. The common law doctrine of ultra vires is applicable in Ghana but with necessary modification under the Companies Code and it is an effective tool for the protection of shareholders, creditors and third party’s interest in the company. Whilst third parties acting in good faith and without notice are protected under the law, shareholders and creditors may restrain the company from dealing with the third party in the case of future transactions. This ensures balance and in any event when an action is instituted the court is obliged to look at the equities involved. 

To Lease or Not to Lease? The Leasing of Indigenous Statutory Lands in Australia: Lessons from Canada

1 September 2009

Margaret Stephenson

Commonwealth Law Bulletin Vol. 35, No. 3 (2009)

In Australia, land rights legislation provides statutory schemes for the transfer of land to Indigenous peoples. The first significant land rights legislation was passed by the Australian Commonwealth government in 1976. This was the Aboriginal Land Rights (Northern Territory) Act (ALRA) 1976 (Cth). In 2006, the Australian Commonwealth government passed significant amendments to the ALRA. One of the key amendments introduced the leasing of Aboriginal “township lands” held under that Act. It is these leasing amendments which are the focus of this article. A primary motivation behind the amendments was to decrease poverty in Indigenous communities and to allow for economic development on Aboriginal lands. This article critiques the township leasing scheme under the amended Act. It questions whether the new leasing arrangements are the most appropriate forms of leasing to achieve economic development on Aboriginal lands and to benefit the Aboriginal communities who hold these lands. In 2008, leasing amendments were passed to Queensland’s statutory land scheme in the Aboriginal Land Act 1991 (Qld) and these amendments are subject to review in this article. Furthermore, the article examines alternative forms of leasing used for economic development on Indigenous reserve lands in Canada and whether there are lessons that Australia could learn from these tenures and their modes of leasing. 

The Caribbean Court of Justice: A Learning Experience for The International Criminal Court?

1 September 2009

Duke E.E. Pollard

Commonwealth Law Bulletin Vol. 35, No. 3 (2009)

This article starts by examining the role of Small States in the development of the International Criminal Court (ICC). It then surveys the functioning and administration of the ICC before proceeding to draw on key lessons for this Court, including on the election of judges and financing, from the Caribbean Court of Justice.