17th Commonwealth Law Conference

Chief Justice Kapadia, Chief Justice Chaudhry, Commonwealth Lawyers Association President Husain, Secretary-General Martin and Acting Secretary-General Eden-Haig, Chairperson of the Local Organising Committee Sorabjee, Honourable Law Ministers, Attorneys-General, Commonwealth Chief Justices, friends and colleagues in the Commonwealth legal community…

It is my great honour to address this, the 17^th Commonwealth Law Conference, since the first – the Commonwealth and Empire Law Conference as it was then – was held in London in 1955. Thank you for inviting me. I will attempt an outline sketch; you will need to be more adept at filling it in.

Let me pay tribute to those in the Commonwealth legal community who have organised this conference. I start, of course, with the Commonwealth Lawyers’ Association – the CLA – which exists to maintain and promote the rule of law, by ensuring that an independent and efficient legal profession serves the people of the Commonwealth.

Along with the Commonwealth Parliamentary Association, the Commonwealth Legal Education Association, the Commonwealth Association of Law Reform Agencies, and the Commonwealth Magistrates’ and Judges’ Association, the CLA was integral to the drawing up of the Latimer House Principles – confirming and consolidating the independence of, and mutual accountability among the three branches of government. That exercise in part underlined how Commonwealth civil society can have a key impact on decisions made by governments.

So, in thanking and acknowledging you all, I welcome you all.

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This meeting today represents an extraordinary reservoir of Commonwealth legal talent. We are also a Commonwealth in miniature, and a Commonwealth at work: hugely experienced; richly diverse; bound by shared values, goals and challenges; and, collectively aspirational.

I am, of course, particularly pleased to be in my own country, and in Hyderabad. We look forward to pearls of wisdom from this conference in this ‘City of Pearls’.

India’s association with the Commonwealth runs very deep. Its first Prime Minister, Jawaharlal Nehru, played a pivotal role in the creation of the modern Commonwealth in 1949. That year, in the wake of Indian independence, the organisation constituted itself anew as an organization of, ‘freely and equally associated states’.

60 years later, under Prime Minister Manmohan Singh, India is one of the Commonwealth’s great champions. In the creation of a giant partnership portal, ‘Commonwealth Connects’, from which the rule of law can benefit richly; launching the network of Election Commissioners which will hopefully create the global gold standard for electoral practice; sport-for-development to nurture young minds and to promote social and gender harmony; distance learning and media development; promoting youth enterprise through pioneering initiatives of commercial banks- India is an active supporter and generous contributor to Commonwealth work in these and many other areas. They all have a close connection with the goals cherished by the community represented here.

Indeed India is a mirror to the Commonwealth, and its three pillars of Democracy, Development and Diversity. Its democratic credentials embrace an electorate of 700 million people. Its development challenge is real: as many have been lifted out of poverty in the last generation as remain in it.

Likewise, we have much to applaud and to share in India’s justice system. I think that Justice Kapadia would welcome the observation that the Indian justice system is characterised by the extent to which the Supreme Court has interpreted and championed human rights, in its role as guardian of India’s constitution.

In July 2009, Justice Shah of the Delhi High Court took the landmark decision to decriminalise homosexual acts conducted in private by consenting adults in this country, progressively addressing a legal legacy of the British colonial era that continues to affect more than three quarters of Commonwealth countries long after Britain itself has moved on. International legal standards require that constitutions should be treated as living documents. Many Commonwealth countries are challenged with reconciling Commonwealth principles of dignity and equality and non-discrimination as well as the fundamental Commonwealth value of respect for fundamental human rights on one hand, with issues of unjust criminalisation found in inherited current domestic legislation in this area, on the other.

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It may be instructive to reflect for a moment on why our association, amongst other things, is a ‘Commonwealth of Laws’.

We are bound by many things. By the commitment to Democracy, Development and Diversity that I mentioned. But we are also bound by our commitment to celebrating and nurturing another alliterative threesome: our shared language, our shared learning, and our shared laws.

We speak not hundreds but thousands of languages – there are over 800 living languages in Papua New Guinea alone. But we come together as one in English.

We claim some of the best in the admittedly highly uneven learning performance in the world. But many of our school systems are close to each other, as recognisable in Botswana as in Bangladesh. It is why, for instance, curricula in the Caribbean can be shared in the Pacific; it is why over 25,000 Commonwealth scholars have easily come and gone across our universities.

And we are also a Commonwealth of Laws. Thus it was that, a few years ago, The Gambia came asking for the placement of Commonwealth judges in its Court of Appeal: hearing and determining cases, assisting in its administration and clearing its backlog; and mentoring local judges. Funded by us and the UK Department for International Development, eight such judges have been in The Gambia for over 16 years, and a Ghanaian and a Malawian are currently in position. We were able to source them with ease from our network, and then could enter with ease into a legal system that was largely familiar.

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Many of our Commonwealth legal systems include sources of home-grown ‘customary’ and also religious law. These have not always addressed the needs of the core Commonwealth constituency of the vulnerable – notably women and children – or the values of freedom and tolerance. And on to these was often overlaid, for better and for worse, the legal system brought by colonizers, notably that of the United Kingdom with its statute and common law. Indeed, 16 Commonwealth members still use the UK Privy Council as their final court of appeal.

As the old and the new sit side by side, so too do the international and the national.

A quick glance at Africa shows an international criminal court in Arusha; a regional community Court of Justice for West Africa in Abuja; and then, just next door in Kumasi, Ghana, the King of the Ashanti dispensing justice and settling the disputes of his subjects.

Local and imported laws have had their merits and shortcomings, and on this I defer to your own expertise. At their best, they have complemented each other. But at times they have overlapped, contradicted, and – particularly in the gulf between cities and rural areas – have almost literally been worlds apart.

Yet it is these amalgams of legal systems that bind us together. Some Commonwealth systems are mature and material; some hang by a thread. There is a lawyer for every 130 people in the UK, but one for every 2,000 in Samoa and around one for every 60,000 people in Sierra Leone – almost all of whom are in Freetown. Some systems have the capacity to work smoothly while others have impossible backlogs of cases, and deficiencies in the skills and technical support available.

These are just some of the shared aspects of our Commonwealth of Laws.

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Legal practitioners are nothing if they are not servants of ordinary people: their duty is to administer humane and transparent justice. In so doing, they are steeped in the stuff of people’s lives.

The obituary of a British High Court Judge a few weeks ago – Sir John Owen, who in 1991 gave a landmark judgement that there was indeed such a thing as rape in marriage – reminded of the simple fact that the law is a matter of right and wrong, of life and death, of crime and punishment, and also of compassion and prudence.

Respect for, and implementation of the Rule of Law has long been enshrined as a core value of the Commonwealth, and most recently in the Affirmation of Commonwealth Values and Principles, which was agreed by Heads of Government at their last summit in Trinidad and Tobago in 2009.

I quote: “Each country’s legislature, executive and judiciary are the guarantors of the Rule of Law…and access to justice and an independent judiciary are fundamental to the Rule of Law, enhanced by effective, transparent, ethical and accountable governance…” Unquote.

But the Rule of Law, I would suggest, is also something rather more absolute. As I had occasion to say to Law Ministers and Attorneys-General of small Commonwealth jurisdictions in London last October, if Democracy is the ad meliora – one of the ‘better things’ to which we aspire – then the Rule of Law is the sine qua non – the ‘without which not’.

The Rule of Law is central to the Commonwealth of Values.

Many of you will be familiar with the work of the Commonwealth Ministerial Action Group, or ‘CMAG’ – the rotating group of nine Foreign Ministers which is the guardian of those values, as much promoting as defending them by its decisions.

Since this conference last met, you will know that Pakistan was suspended from the Councils of the Commonwealth in 2007, in part because of a clear flouting of the Latimer House Principles, when the judiciary was dismissed. We were delighted that Pakistan was returned to our Councils the following year, after democratic elections and the reinstatement of the judiciary.

Meanwhile, the full suspension of Fiji from the Commonwealth in 2009 as a result of a military coup was also in part a legal matter. CMAG cited, “…the undermining of the independence of the judiciary and the legal system.” So, we will take difficult and painful measures to defend the Rule of Law.

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The term implies independent, efficient and accessible judicial and legal systems, applied fairly, equitably, and consistently. Whatever the definition, there is broad consensus that the Rule of Law is the core of a just society.

Any I may quote chapter and verse originating from this country: the Declaration of Delhi (drawn up by the International Commission of Jurists in 1959) stated that the Rule of Law, “…should be employed to safeguard and advance the civil and political rights of individuals…and to create the conditions under which their legitimate aspirations and dignity may be realised.”

That last clause I have just quoted is key. The words, “aspiration” and “dignity” remind us that the Rule of Law is not only limiting or prescriptive; rather, it is a way of underwriting and promoting aspiration, the strength and democratic coherence of our societies, and our shared task of economic and social development.

In other words, the Rule of Law is about the fulfillment of individual and collective human potential.

Many make the link with development. 191 states did so explicitly in the Millennium Declaration of 2000, which accompanied their pledge to achieve the eight Millennium Development Goals. They agreed, “…to spare no effort to promote democracy and to strengthen the Rule of Law, as well as respect for all internationally recognized human rights and fundamental freedoms, including the right to development.”

From a Commonwealth perspective, democracy and development, we believe, are mutually reinforcing: two sides of the same coin. To change the metaphor, they are the two sturdy legs on which the Commonwealth strides ahead.

A seminal work in 2002 by a Commonwealth Commission led by Dr Manmohan Singh, at the time Finance Minister of India, substantiated and elaborated on this very point. It is clear that respect for the Rule of Law through predictable laws and independent judiciary contributes to stable growth and particularly to investor confidence.

I am now citing general orthodoxy, which has widespread support amongst those who research it in depth. Many of you will be familiar with the World Bank Institute’s Global Governance Group, charting the rise in national GDP correlated with the rise in the Rule of Law and governance capability. One only has to look at where there are serious legal abuses by government to see the resulting damage done to economies.

And with these findings has come a new commitment from the Bank to train judges, reform prisons, and set up prosecutors’ offices. Almost half of all of the World Bank’s total lending, of well over $20 billion, now has some Rule of Law component.

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Such received wisdom is all very well, you may say, but how in the Commonwealth – as the title of this conference puts it – are we to ‘meet the challenges of emerging economies in keeping the Rule of Law’?

The Commonwealth Secretariat and our Legal and Constitutional Affairs Division is part of the answer. I commend its work to you: its range is remarkable.

It spans not just the words but the wherewithal to enact those words through our diverse networks. Stream A of this conference concerns itself with constitutionalism, and it was the Commonwealth that supported the drafting of the constitution of St Kitts and Nevis in 2003, and of Swaziland in 2006. They were both visionary attempts to set new national paths, owned by the local communities with wider Commonwealth support to do so.

Last September, I was in Nairobi just weeks after the voting on a new constitution for which the Commonwealth had been asked to provide legal drafters. We are also now helping to develop laws flowing from the new constitution in four areas: devolution, land, finance, and electoral systems.

I then flew to Lusaka, where Zambia too is in the stages of developing a new constitution, which may also create a role for us.

The work we have done in unlocking the Law of the Sea to allow 14 of our member countries to claim an additional 2 million square kilometers of seabed is akin to opening an ocean of economic possibility and wealth creation for them.

So, we draft legislation, we support freedom of information, we monitor elections and support election commissioners, we train police in human rights issues, we train judges and court officials, we strengthen women’s and girls’ rights – especially important in 2011 when the Commonwealth theme for the year is “Women as agents of change”. The list goes on.

Such is the variety. And, when augmented by the contributions of the widest possible family of Commonwealth organisations, and when we work together, the development potential and dividends are enormous.

We can cite the example of the post-9/11 world, and the way in which we brought technical help to that situation as well as creative thinking. On one hand, the UN Secretary-General asked for the Commonwealth’s help in drafting model anti-terrorism and anti-money laundering laws, to allow countries to implement UN Security Council Resolution 1383.

On the other hand, we also took the broader view on the causes of remedies for the fractures in societies, with the publication of a report entitled, CiviI Paths to Peace. If you have not read it, I commend it to you. The report seeks to turn away from the global discourse founded on a so-called ‘clash of civilisations’ or religious dichotomies. It pursues instead the fertile ground of building dialogue, understanding and mutual respect on the basis of the fact that we are all composite multiple identities.

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Before closing, I should mention one more fresh development in which we hope the Commonwealth will be able to support all members to uphold the Rule of Law. The last Heads of Government Meeting raised the bar with the Affirmation of Commonwealth Values and Principles as I mentioned. That Meeting also agreed that I should establish an Eminent Persons Group to explore options for reform aimed at sharpening the impact, strengthening the networks and raising the profile of the Commonwealth. There is much detail about this Group and its work to date on our website.

Just last week, the Group met in Kuala Lumpur, and it is clear that they are determined to recommend to the next leaders’ summit – the CHOGM in October this year in Perth – that the Rule of Law be given a new, reinforced and sustained level of commitment by the Commonwealth, both politically and practically. This conference could not be better timed to reinforce the work and conclusions of the member of that Group, and I shall ensure that the conclusions drawn here are transmitted to them.

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Distinguished members of the Commonwealth legal community. I undertook at the outset to sketch an outline to which you yourselves would add form at this conference. I have mentioned the primacy of the Commonwealth of Values and the Commonwealth of Laws. I have affirmed that written statute matters, but so, too, does human capacity. I have recalled that our collective lives move forward with coherent striving. I will not cease to underline the centrality of the Rule of Law to national development and advancement, and to the highest aspirations of our people. I have pointed to our willingness and capacity in the Commonwealth Secretariat to contribute practically, and to work with the wider family of Commonwealth organisations in partnership.

Thank you for your attention, and I wish you a successful, rewarding, and productive conference.