The Commonwealth: What does it mean for Lawyers?
Peter Slinn
Introduction
Outside a gathering of practitioners in the Commonwealth, most would no doubt reply
‘not a lot’. Most lawyers (certainly those with a private law practice) in Commonwealth countries
will in their professional lives rarely if at all engage with the Commonwealth dimension. So
perhaps question ought to be –what SHOULD the Commonwealth mean to lawyers?1 I propose
to characterise the Commonwealth as a legal animal, consider the concept of ‘Commonwealth
law’ as developed through the jurisprudence of Commonwealth courts, and consider the
normative effect in international and domestic legal fora of Commonwealth fundamental values
and principles. I will emphasise the problem of securing compliance at inter-governmental level
and the vital role of the Commonwealth professional legal organizations in promoting
compliance with the principles. I will draw attention to the role of the Commonwealth
Secretariat in providing a framework for legal co-operation across the Commonwealth on
contemporary issues such as cybercrime, Some conclusions will be offered on the value to
lawyers of the Commonwealth connection.
What is the Commonwealth? What species of legal animal is it?
This is a question which puzzles international lawyers and observers outside the
Commonwealth world. The characterisation of the Commonwealth was of interest to lawyers in
the Soviet Union where I gave a lecture in 1989 shortly before its demise and re-emergence as
the ‘Commonwealth of Independent States’. The Commonwealth is an international organisation
– in the dualist mentality of common lawyers these bodies traditionally operated on another
plane or indeed planet. As a English judge once famously remarked in relation to the Arab
Monetary Fund – an international organisation is a creature from outer space.
An international organization….is not a native, nor is it a visitor from abroad. It comes
from the invisible depths of outer space.2
Such a remark would not be made today. Contrast the words of the late, great Lord
Bingham:
The interrelationship of national and international law, substantively and procedurally, is
such that the rule of law cannot be regarded as applicable on one plane but not on the
other.3
International organisations and international treaties and the rules which they prescribe
play an increasing part in domestic law. Refugees and asylum seekers are everywhere, so
immigration lawyers must be familiar with the refugee conventions; international business must
take account of the Byzantine complexities of world trade law. Three Commonwealth countries
are members of the European Union: EU law runs like a river through their legal systems and
every lawyer in an EU country must know her EU law. Human rights is perhaps the most
1
2
3
A number of issues addressed in this paper are considered in my chapter ‘The Commonwealth and the law’
in James Mayall (ed) The Contemporary Commonwealth: An assessment 1965-2009 Routledge, 2010.
Arab Monetary Fund v Hashim (N03) [1992] LRC (Const) 223, per Lord Donaldson.
Tom Bingham The Rule of Law (2010), p 119.
international of all fields of practice; most regions of the world have some form of international
supervisory system – the European Convention of Human Rights system being perhaps the
most developed and in the United Kingdom highly controversial in its application. Regarding
International trade law mentioned above, the Appellate Body of the World Trade Organisation is
the largest compulsory dispute settlement mechanism in terms of numbers of state parties –far
outstripping the compulsory jurisdiction of the International Court of Justice. Many lawyers have
lucrative practices before the ICJ and international investment tribunals.
The skeptical lawyer will say that these examples only demonstrate the lack in the
Commonwealth of organs and powers which characterise ‘proper’ international organisations
which do have legal significance for lawyers, as readily illustrated above. She will observe that
there is no constituent binding Charter or Statute on United Nations or African Union model
binding member states in terms of legal obligations (the ‘Commonwealth Charter’ recently signed
by Queen Elizabeth in her symbolic capacity as Head of the Commonwealth on behalf of the
people of the Commonwealth is little more than a statement of principles and aspirations to
which the people of the Commonwealth aspire. There are no rules which have direct effect or
which require implementation through local enactment.4 If there are no rules to enforce, then
there can be no judicial or other method of enforcement).
Legal apologists for the Commonwealth respond as follows:
• The Commonwealth may not have international legal personality as such but does
satisfy the basic requirements for an international organisation as being a permanent
association of states with lawful objects equipped with organs such as Commonwealth
Heads of Government Meetings (CHOGM), the principal decision-making body, the
Commonwealth Secretariat and the Commonwealth Ministerial Action Group (CMAG),
the peer review mechanism and guardian of Commonwealth principles. The
Commonwealth Secretariat does enjoy international personality and enters into
arrangements with states and other international organisations. The lawful objects would
include the promotion of peaceful co-operation between governments particularly in the
field of development and the protection and promotion of democracy, the rule of law
and human rights.
• There are no Commonwealth-wide judicial institutions in the sense that the
International Court of Justice is the principal judicial organ of the United Nations. The
idea of a ‘Commonwealth Court of Appeal’ once mooted is no longer a practical
proposition. Such a body once existed in the form of the Judicial Committee of the Privy
Council –in the days of Empire, it was the ultimate appellate tribunal for the whole
Empire outside the United Kingdom. The Judicial Committee is a remarkable survival as
a court which still serves as the final court of appeal for a number of Commonwealth
jurisdictions– independent member states such as Barbados and Brunei, the remaining
United Kingdom overseas territories, Crown dependencies and the New Zealand
associated state of the Cook Islands. There is a core group of lawyers who practice
regularly before this ‘Commonwealth court’.
• Can we speak of ‘Commonwealth law’?
4
Other than statutes required to give legal capacity to the Commonwealth Secretariat and immunities to its
servants.
The Judicial Committee has fostered over the years the development of a
‘Commonwealth jurisprudence’ particularly in the field of human rights: the death penalty
issue is an obvious example. It is an irony that the European Convention on Human
Rights, the place of which in United Kingdom law generates so much controversy, is the
model for the bills of rights incorporated in the constitutions of many Commonwealth
countries. This commonality has led all the superior courts of the Commonwealth, not
only the Privy Council, to develop a formidable jurisprudence in the field of human
rights, for example with regard to the abolition/retention of the death penalty.5 This
commonality is not confined to human rights. The common law tradition and the shared
constitutional experience of Westminster export model constitutions has led
Commonwealth courts to develop fundamental principles of public law such as the
separation of powers and the basic structure constitutional doctrine originating in India.
These are examples of a process whereby courts of commonwealth countries crossfertilize each other in a shared legal gene pool. Of course Commonwealth judges will also
look to the United States and other common law jurisdictions outside the
Commonwealth in terms of a shared common law and constitutional tradition (the
supremacy of the constitution which underpins almost all Commonwealth constitutional
orders finds ready sustenance from the traditions of the United States Supreme Court).
I am not suggesting that there is a system of Commonwealth law akin to ‘European
Union law’. However, there does exist a jurisprudence of the Commonwealth from which all
Commonwealth jurisdictions derive nourishment. It may be argued also that ‘Commonwealth
Principles’ emanating from Heads of Government reflecting fundamental values most recently
expressed in the Commonwealth Charter operate to have legal effect at both international and
national levels.
The international level
Heads of Government have frequently re-affirmed their strong and abiding commitment
to the Commonwealth’s fundamental values and principles. CMAG is tasked with exploring ways
in which it could deal more effectively with the full range of serious of persistent violations of
such values by member states. One might construe from this that member states will hold each
other to account for such violations and that sanctions will be imposed. What is the
Commonwealth’s record in this regard? Probably the most effective example goes back to the
‘enforcement of the Gleneagles Agreement (Commonwealth Statement on Apartheid in Sport.
1977). New Zealand’s ‘breach’ of the agreement (challenged by a young Jeremy Pope whose
death last year robbed the Commonwealth of one its most distinguished legal servants6) led to
the cancellation of a Commonwealth ministerial meeting in New Zealand. In recent years a
number of Commonwealth countries have been subject to suspension of membership for noncompliance with Commonwealth fundamental values, most notably where constitutional
government has been overthrown as is currently the case with respect to Fiji. The principles also
seek to lay down international standards for the conduct of the executive in matters which raise
broader governance issues then the human rights standards which are the traditional preserve of
international legal obligations affecting domestic conduct of states, for example, in relation to
respect for independence of the judiciary.
5
6
While present in this jurisdiction, it is particularly appropriate to cite the early unanimous decision of the
Constitutional Court of South Africa that the death penalty for murder and certain other offences was
unconstitutional: State v Makwanyane [1995] 1 LRC 269. Truly a landmark in Commonwealth jurisprudence.
See the tribute in the Special Conference Issue of the Commonwealth Lawyer, vol 21, No 3, p 82.
Sadly, the modern Commonwealth is not short of examples of grave breaches of its own
principles. Apart from the case of Fiji, participants at this conference have heard of a the grave
crisis which has arisen in Sri Lanka (one of the founder members of the modern
Commonwealth), where the Chief Justice was impeached by a flawed process and the decisions
of the courts flouted by parliament and the executive. It is noteworthy that the recent
authoritative report commissioned by the International Bar Council Human Rights Institute on
A Crisis of Legitimacy: The Impeachment of the Chief Justice and Erosion of the Rule of Law in Sri Lanka
cites the incompatibility of the actions of the Sri Lanka Government with the core values and
principles of the |Commonwealth including respect for separation of powers, rule of law, good
governance and human rights affirmed by the recently promulgated Commonwealth Charter and
the Latimer House Principles referred to below.7
Thus a framework does exist for holding member governments to account for ‘breaches’
of Commonwealth Principles but this raises a fundamental issue: the reluctance of governments
to accept effective enforcement mechanisms. The bold proposal by the recent Report of the
Eminent Persons Group8 for a Commonwealth Commissioner for Democracy, the Rule of Law
has been buried by ministers –they may accept a form of peer review represented by CMAG, a
committee of ministers, but not an independent monitoring body.
The issue of the location of the next CHOGM in Sri Lanka will provide a litmus test of
the Commonwealth’s resolve in respect of rule of law issues.
National level
Commonwealth values also reach down into domestic legal orders and through the
Latimer House Principles (LHP) which prescribe codes of conduct for the judiciary, parliament
and the executive in their relations with one another and with civil society. This year sees the
15th Anniversary of the adoption of the original Latimer House Guidelines and the 10th
Anniversary of their adoption into the Commonwealth’s fundamental values at the Abuja
CHOGM.9 The recent Charter, whatever its shortcomings, is designed to inculcate a culture of
participation and compliance with the principles at all levels of society involved in participatory
governance.
The Commonwealth partner associations (Commonwealth Lawyers Association,
Commonwealth Legal Education Association, Commonwealth Magistrates and Judges
Association and Commonwealth Parliamentary Association) can and must play an important role
as custodians of the Latimer House Principles in the drafting and promotion of which they have
played a major part. The role of the associations in this process shows that the Commonwealth is
more than an association of governments, but also of peoples, as is symbolized by the wording
the Charter in the name of ‘we the people of the Commonwealth’. The Commonwealth is not
unique in this, as the worldwide network of United Nations associations shows. However, the
large network of civil society and other organizations do define in a real sense the nature of the
Commonwealth association.
7
8
9
The report can be found on the IBA website, <www.ibanet.org>.
A Commonwealth of the People: Time for Urgent Reform: The Report of the Eminent Persons Group to Commonwealth
Heads of Government, Commonwealth Secretariat, 2011.
Named ‘Latimer House’ after the country house in Buckinghamshire, England, where was held the original
colloquium which draw up the Guidelines. The relevant documents are collected together in Commonwealth
(Latimer House) Principles on the Three Branches of Government published by the Commonwealth Secretariat and
the other sponsoring organizations in February, 2009, available on the CMJA website, <www.cmja.org>.
The role of the Commonwealth associations of lawyers is particularly significant. To give
one illustration in relation to the Latimer House Principles to which I have referred.. It is worth
emphasizing that these important principles now much cited in the courts and by bodies such as
the IBA in the report referred to above were the result of an initiative by the partner
organizations, not governments. In this sense, Commonwealth principles have emerged from a
process involving co-operation between governments and non-governmental associations which
is an increasing characteristic of modern international instruments (the recent Land Mines and
Tobacco Control Conventions are examples from the United Nations system. The significant
guardianship and ownership role of our Commonwealth legal organisations in the Principles is
discharged at an operational level by drawing to the attention of the Commonwealth Secretary
General and ministers examples good and bad practice in relation to the observance of the
Principles. Only the Australian Capital Territory has gone so far as to carry out an audit to
measure compliance by the three organs of government, but this is a precedent which lawyers in
other jurisdictions should seek to follow. I should emphasize that recording of good and bad
practice in terms of the application of these principles is a process in which lawyers throughout
the Commonwealth can and should play a vital role.
Apart from its macro-political role in terms of the Secretary General’s good offices and
electoral observer missions, the Commonwealth Secretariat through the Legal and Constitutional
Affairs Division (LCAD) plays a vital role at the ‘nuts and bolts’ level in facilitating co-operation
between Commonwealth jurisdictions: provision of practical support, training and facilitation of
co-operation in numerous fields of legal activity of particular value to small, developing
jurisdictions as manifest by the agenda of Law Ministers and Officials meetings. The current
cybercrime initiative is a good example of the way the Secretariat and its partner organizations
can play a leading role in addressing cutting-edge legal issues.
Conclusion
A crisis of credibility of the Commonwealth at political level should not detract from the
value for lawyers of the Commonwealth weapon in their defence of the rule of law. This
Conference itself is a testament to the proposition that the Commonwealth does have a meaning
for lawyers in providing a special forum for those from diverse legal traditions but certain
fundamental values in common to explore solutions to common problems. This process
involves exploiting the Commonwealth legal network in the facilitation of trade and business and
supporting those on the front line of the fight to preserve and promote human rights and the
rule of law. The Commonwealth through the Secretariat offers effective practical assistance at
the ‘nuts and bolts’ level for which practitioners, judges and government lawyers, particularly in
small and isolated jurisdictions, derive great benefit.
However, if Commonwealth principles do provide an effective yardstick by which the
conduct of executives, parliaments and judiciaries may be measured, the weakness of
Commonwealth institutions is exposed if there is failure to uphold those principles and
effectively to sanction violators. This is why the Sri Lanka ‘crisis of legitimacy’ is so serious for
the very future of the Commonwealth as a meaningful international organisation.
I hope that I have demonstrated that the Commonwealth does have a meaning for
lawyers. I would also add that the value they derive from the Commonwealth depends in large
measure on the contributions which they themselves are willing to make in sustaining and
strengthening the principles for which the Commonwealth stands. At the recently concluded
Commonwealth Law Conference in Cape Town Navi Pillay reminded us all of our duty to
preserve and protect human rights. Shridath Ramphal, a former Secretary General of the
Commonwealth and himself a distinguished lawyer, told the Commonwealth Law Conference in
Hong Kong exactly thirty years ago:
By disposition and training, we tend as lawyers to be custodians rather than
developers….Changing times demand more of lawyers than merely being keepers of the
seals.
[Peter Slinn is General Editor of the Law Reports of the Commonwealth, and a member of the Executive
Committee of the CLA. This article is based on a paper presented by him at the 18th Commonwealth Law
Conference, Cape Town, 14-18 April 2013.]