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18 May 15

What took place at the Glasgow 2015 Commonwealth Law Conference, and what may be its impact going forward? The editor reports on an impressive gathering that did Scotland proud

by Peter Nicholson

Think Commonwealth, think Glasgow. For the second time in nine months, our great city played host to all the countries that used to be coloured red on the map, this time to enable lawyers and judges from 50-plus nations to network and learn from each other.

Do not underestimate the learning. Joining the breakfast reception hosted by our SYLA on the first day, I met Greg Ross, a Sydney lawyer who assured me these are “the best law conferences with the best topics on the planet”. He should know, having missed only one since 1996. Albeit it was my first international gathering, after three and a half stimulating days I was willing to believe him.

It all needs organising, of course, and we can be proud of our Society and what it achieved for our visitors (Katie Hay was given a deserved special vote of thanks as the lynchpin). From the opening reception to the gala dinner, and everything in between, the Society and the city between them showed the best Scottish welcome, even if the weather was typically fickle.

Seven hundred delegates representing most Commonwealth nations seems quite an impressive total, especially as the UK Government’s Global Justice event to mark the Magna Carta anniversary will have diverted a good number – but the Commonwealth Lawyers Association’s inflexible pricing policy, requiring an all-or-nothing booking, did nothing to encourage home-based lawyers to attend. Those from overseas would come for the duration anyway, so why not allow local practitioners to sign up for a session or two to try it out?

A pity, too, that more of the presentations are not available on the conference website (www.clc2015.co.uk). Numerous photos are there, but the only speaker link is to the Lord President’s opening address, also posted to the Scottish judiciary website.

Inspirational tales

It is difficult to command more respect at a legal conference than that inspired by first-hand accounts of lawyers taking a stand, potentially at great personal risk, against draconian legislation or authoritarian acts of government. One such was Steven Thiru, President of the Malaysian Bar, highlighting the “climate of fear” arising from the way his Government, having promised to repeal a harsh anti-sedition law dating from colonial times, was attempting to push through an amendment that would instead require a minimum three-year jail term for any utterance deemed to have a “seditious tendency” – truth being no defence. Already a predecessor of his was being investigated simply for expressing a legal opinion. Indeed, he believed he was putting himself at risk of prosecution even by what he said in his address.

Another was Upul Jayasuriya of Sri Lanka, presented with the Rule of Law Award sponsored by LexisNexis. (I happened to be sitting beside him at coffee early in the conference, and heard of his experience ahead of the public announcement. It was that sort of event: you never knew who you might meet next.) Jayasuriya stood up against his Government during a period of detention without trial, torture and loss of press freedom. “I too was called on to pay the price,” he told the conference.

Matters came to a head when the President attempted to have the Chief Justice impeached and replaced by somebody more to his liking. The Sri Lankan Bar had put itself in the forefront of the opposition, and Jayasuriya was elected its President for his stand. In brief, the Government eventually backed down and a constitutionally proper outcome was achieved after the impeachment charges were dropped, but, Jayasuriya warned, “We cannot rest.”

But we should not imagine that the professions in the older, westernised Commonwealth countries are in a state of contented stability. Delegates could hear of vigorous debates in Canada over ABS, issues around allowing lawyers to practise across state borders there and in Australia, and why governments in Australia and New Zealand had to be tackled over backtracking on human rights. I am sure the UK will not have escaped censure in some of the sessions I was unable to take in.

Multi-faceted

Yet human rights and the rule of law was only one of four streams that ran throughout the conference. A further stream devoted to corporate and commercial law offered in-depth sessions on non-lawyer ownership of law firms, corporate governance, partnership, risk management, money laundering and more. A third focused on the legal and judicial profession, taking in gender equality, legal education, commercial litigation, in-house, globalisation, access to justice, and – one of the best discussions I attended – trial by media, where journalist and broadcaster Joshua Rozenberg led an interactive panel-audience debate on what controls, if any, should be placed on reporting before and during a trial. And the fourth stream, contemporary legal topics, took in everything from cybersecurity to child abduction, Sharia law to legal aid, freedom of information to cross-border regulation. It was often difficult to choose what to go to next.

The CLA must have thought it quite a coup when it announced, with the conference already underway, that a planned streamed session on international intelligence sharing, or how lawyers should respond to the Edward Snowden revelations, would feature a live videolink with Julian Assange, from his refuge in the Ecuadorean Embassy.

Indeed, Assange had some interesting things to say about possible precautions to reduce the risk of eavesdropping on privileged client communications (segment it and deliver it at different times and by different means, for example), though it was unfortunate that the chair tended to favour questions from the journalists rather than the lawyers present. But the surprise presence of a fugitive from justice was too much for many of the judges, and they promptly quit the conference (the organisers coped admirably in finding several replacement speakers and session chairs at short notice).

All these experiences make one realise what a curious beast the Commonwealth actually is. A collection of nations with a common legal heritage, a Charter (adopted in 2013) that sets out core values including democracy, human rights and the rule of law, and by and large the common factor of an independent legal profession whose members are prepared to take a stand when necessary in support of those values, but where many in power, whether executive or legislative, appear to regard their position as containing few restraints on how that power is exercised.

Keynote stars

Each of the four keynote addresses – one for each day – more than lived up to the description. You will find elsewhere in this magazine (Stephen Gold, p47) an uplifting account of the events on the final day as Judge Michael Kirby (Australia) responded to the challenge from African delegates as he questioned why anti-gay laws are still robustly promoted in so many Commonwealth countries. His counterparts on the other days each equally set the tone for the conference.

Launching the event, Lord Gill (who pointed to his Glasgow roots: he was born less than two miles from the conference location, the SECC) took as his theme the twin fundamentals of the independence of the judiciary and of the legal profession. Addressing the question “What kind of judges do we wish to have?” – “a simple one until you try to answer it” – he ranged over judicial appointment processes, and, more importantly, the criteria for appointment: essentials were academic excellence comprising a profound understanding of one’s legal system and its concepts, and wide practical experience as a fearless pleader – the reason, he maintained, for society to foster the existence of an independent referral bar. (A speaker in a following session suggested that perspective might be too limited.)

Questioning the reluctance of some leading lawyers to seek judicial appointment, he suggested that the sticking points might not be salary and pension so much as the loss of independence and of professional comradeship, the lack of appreciation, and the hostility of critics. He also considered the crucial role of judicial education, the highest priority of which was “not to teach judges the law, but to teach them about themselves”; the importance of a disciplinary procedure that strengthened rather than compromised judicial independence; and how good communication with the media – albeit at arm’s length – also played a role by showing the system to be in touch with the community.

The star of day two for me was Hina Jilani. Founder of the first women’s law firm in Pakistan, and the first “legal aid centre” there, for many years she has stood up for the rights of women and disadvantaged groups, often in the face of hostility. However, her address had a global scope, surveying the actions of dedicated lawyers against harsh regimes (legal and/or government) in countries including the Philippines, Indonesia, India, Bangladesh, South Africa, Chile, Argentina and Brazil. Insisting that the rule of law must not mean allowing it to underpin unjust situations, she provided good advice even for those in the developed world who seek to challenge unfair government policies: choose test cases carefully; put constant pressure on the government, building on any judgments in your favour; and aim to use the courts to “sensitise” the judiciary by publicising real individual cases that illustrate injustice, both legal and social, and thus challenge the offensive nature of the laws impugned.

For each country mentioned, she explained how carefully targeted action – perhaps over an extended period – could produce results, sometimes even under military dictatorships, and how good record keeping helped bring to account those responsible for violations of rights, once democracy had been restored. This inspiring woman should surely be among those considered for global humanitarian awards.

No less impressive the following day was Dame Silvia Cartwright, New Zealand’s first female High Court judge. Currently an expert adviser to the UN High Commissioner for Human Rights investigating abuses of human rights in Sri Lanka, Dame Silvia also served for eight years as a judge of the international court trying human rights abuse charges against the Khmer Rouge regime in Cambodia, which was responsible for hundreds of thousands of deaths.

The real meat of her talk was in the lessons learned on a tribunal comprising a mix of civil law and common law-trained judges, the great differences in approach on each side, and the respects in which she considered each had the advantage in that context (overall, a marginal preference for common law, but much better to develop a hybrid suited to such a trial). Finally, there were lessons to be learned for the future, and possible approaches if a tribunal should come to be set up for a Commonwealth jurisdiction.

Pointer to the future?

There are many respects other than genocide in which an international tribunal could act. You might think that many of the situations described at the conference would call for a central authority with at least the duty to speak out against abuses, if not the power to engage in constitutional proceedings. Yet although there is a Secretary General, Justice Kirby informed us of a series of recent situations where that official had done no more than make diplomatic representations, which had had no practical effect. He had also opposed a proposal for a UN-style High Commissioner for Human Rights at the time of the Charter. Kirby earnestly hoped that the next appointee, to be chosen later this year, proves to be a more effective advocate for the Charter values.

Perhaps in an ideal world there would be a right to apply to, say, the Privy Council, not necessarily as a final court of appeal as it remains for some Commonwealth states, but to fulfil a declaratory role, analogous to the European Court of Human Rights, in upholding the Charter where individuals are aggrieved by actings of their state or its institutions but have no similar recourse at present. It is, admittedly, unlikely to happen soon, but if the aspirations embodied in the Charter are to be taken forward, lawyers should be agitating for some dedicated independent supervisory role to be established.

If the Commonwealth Law Conference can stimulate such thoughts and discussions in pursuit of our shared professional ideals, it surely has a valuable role to play.

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