From April 14 to 18, 2013, DBB was fortunate enough to attend the 18th Commonwealth Law Conference in Cape Town, South Africa, on behalf of the Canadian Bar Association President, Robert Brun. The opening ceremonies began with a wonderful performance by the Tigerburg Children’s Choir of South Africa, followed by a number of speakers welcoming delegates from the 54 commonwealth countries.
Among those was the Chief Justice of South Africa, who availed himself of the opportunity to address recent media reports publicizing widespread criticism of the judicial appointments process in South Africa.
It appears that there is a bit of a backlash against the appointments of black and female judges; while some believe the appointments are necessary to address clear and disproportionate representation on the judiciary of the South African population, the opposing viewpoint is that there is simply not sufficient experienced and competent black and female lawyers from which to draw that number of appointments in such a short time. It is clearly a very hot topic in South Africa.
I was struck throughout the conference by the pervasiveness of the topic of apartheid, given that it ended 19 years ago but, given that the Rule of Law figured prominently in virtually every aspect of the conference and that the host city is Cape Town in the country of South Africa, perhaps I ought not to have been so surprised. Certainly, that history informs virtually every discussion around the Rule of Law and the legal process in South Africa, and much of the Commonwealth.
Rule of Law must be grounded in human rights
Also at the opening ceremonies we heard from Navi Pillay, the UN High Commissioner for Human Rights. She gave an extremely inspiring speech about the nature of human rights (inalienable, universal and indivisible). She made the point that the Rule of Law must be grounded not in the law but in human rights. For example apartheid was, in its time, legal and yet clearly was always a breach of fundamental human rights.
She spoke to the importance of an independent and competent judiciary (NB: the concept of a judiciary independent from the executive was also a very pervasive theme at the conference) and also encouraged lawyers, justice ministers and the courts to investigate and employ UN processes wherever possible.
I then attended one of the first Continuing Legal Education (CLE) sessions titled “Who Guards the Guardians” where Malcolm Mercer was presenting a paper on the Canadian perspective on regulation. He was joined by Baroness Deech from Britain and Jeremy Gauntlett from South Africa, both discussing the responsibilities and powers of their respective Legal Services Boards.
We certainly do seem, at least for the moment, to have a rather unique structure in terms of our very formal separation of regulatory and advocacy functions. Malcolm did a great job with the presentation.
Human Dignity Trust profiled
On Tuesday I attended a session on the decriminalization of homosexuality in commonwealth countries, which was one of the most enlightening and profoundly disturbing sessions I attended. It was chaired by Jonathan Cooper, who is the CEO of an organization called Human Dignity Trust in the UK.
I was very surprised to learn that 42 of 54 Commonwealth countries still criminalize homosexuality. There was discussion of the use of Privy Council procedures, the UN Human Rights Commission and even asylum laws in connection with the victims of persecution under these criminal statutes.
Obviously, the difficulty in challenging these laws domestically is that you must have both willing lawyers and willing Plaintiffs and the ability to protect them both in a situation where their personal safety may be very much at risk.
However, I think the most poignant part of the discussion for me was the fact that many of us in the audience, including myself, continually gravitated towards thoughts of gay rights (example: the right to marry, the right to inherit, etc.) and again and again Jonathan had to remind us that this was not a discussion of what rights gay people should enjoy, but the mere freedom from criminal prosecution on the basis of sexual orientation.
I have corresponded with Jonathan since returning from the conference as I am keenly interested in the work of his organization. Human Dignity Trust essentially provides support, both financial and human resources, to lawyers who are engaged in defending individuals and challenging anti-gay legislation in Commonwealth countries throughout the world.
At the appropriate time, I would like to have a discussion about how our members might learn more about Jonathan’s organization. It seems to me that what they do is not in competition with, but is quite distinct from, the work of our International Development Committee (IDC).
Forced marriages: a form of slavery
Another session I attended that was very interesting was “Forced Marriages: What Should the Legal Response Be?” Professor Bonita Meyersfield from Cape Town University made the point that forced marriage is not a family law issue, it is a form of slavery.
It is to be distinguished from arranged marriages or sham marriages, all of which involve elements of consent. The Minister of Gender from Ghana was also a panellist and spoke of personal knowledge of girls as young as 12 being abducted from their communities and from their schools and married off to older men, often from the remote villages from which they had immigrated.
What is astounding to some extent about all of this is that forced marriage and marriage to women under either the age of 16 or 18 (it varies between countries) is illegal in all these countries and continues. Professor Meyersfield recommended a uniform age of consent, better methods for nullifying or voiding marriages which offend the existing or perspective laws and better social supports and safe communities for women who leave forced marriages.
Of some interest to me was the gentleman from Nigeria who spoke up to defend early marriages on the basis that they generally provided a financial benefit to the bride and her family. He also made the point that it made sense that an older man would want to marry a 16 year old girl as she could more easily be controlled than a 35 year-old woman, a commodity for which he clearly had little regard.
Legal education in the Commonwealth
I attended a session on legal education in the Commonwealth. Of interest to me was the fact that only about half the Commonwealth countries still have an articling program and very few have a national bar exam of any kind. There are increasing trends towards remote learning, computer aided study, the training of non-lawyer professionals and what are called Massive Open Online Conversations (MOOCS).
I attended another session on junior lawyers where young lawyers from Nigeria, India and England shared their experiences regarding entry into the profession and attending challenges. Not surprisingly, these included the difficulty in securing positions following their educational training and the extreme financial pressures resulting from very low pay in the first years of practice.
Lastly, I went to a session on judicial appointments. Given the opening ceremonies speech by the Chief Justice, I had anticipated a rather lively session but it was really a synopsis of the judicial appointments process in a number of different countries.
While everyone seemed to agree that it was of paramount importance that the judiciary remain independent of the executive and that judges be appointed generally in accordance with the Latimer House Principals of 1998, there was a lot of variance in the constitution and operation of the various judicial appointment committees.
I also attended an informal dinner for the Canadian delegates there, as well as a reception at the Castle of Good Hope hosted by the South African Bar and a second reception at the Two Oceans Aquarium hosted by the UK and Wales Law Societies. I did have occasion to meet a number of lawyers from different countries at these events, including a number of Scots. The 2015 Commonwealth Law Conference is in Glasgow and they are certainly hoping for a large Canadian contingent at the conference.
The closing keynote speaker was the Chief Justice of the Courts of England, Justice Lord Judge (I’m not kidding – his last name is Judge). He was also an incredibly inspiring and gifted speaker who spoke at length about the evolution of human rights, the history of apartheid and its import for all of us. It was an extremely stirring address and if possible, I would recommend a transcript of it to the Canadian Bar Association (CBA) offices.
Unfortunately, as we have learned not to do in our Canadian Legal Conference Review Committee work, the closing ceremonies featured no less than 13 speakers in total and ran almost two and a half hours in length.
As part of this, I gave a speech on behalf of Robin Sully who is the inaugural winner of the Commonwealth Lawyers “Rule of Law” Award. I was humbled and honoured to speak on behalf of Robin before the hundreds of assembled delegates. Malcolm Mercer was kind enough to videotape the giving and receiving of the award and I believe that John Hoyles has a copy of that video.
Once again, I thank the CBA for the opportunity to have attended the Commonwealth Lawyers Conference. I found it to be an extremely broadening and worthwhile experience and was proud to represent the Canadian Bar Association.