Our common purpose

Michael Todd QC reports back from the Commonwealth Lawyers’ Association Biennial Conference 2013, held in Cape Town in April

It served as a poignant reminder of South Africa’s recent past, and the rebirth of that Nation, that lawyers from all over the Commonwealth should gather in Cape Town, in April this year, for the Commonwealth Lawyers’ Association Biennial Conference. In many, if not most, of the jurisdictions which I visited last year as Chairman of the Bar, I was privileged to attend conferences and forums, the central theme of which was the Rule of Law. They were interesting, and often inspirational, conferences. There is no shortage of able, articulate and committed people available to speak on, or around, the subject; and it is absolutely vital that they should continue to do so.

But commentators, and indeed even more passive observers, have often remarked, and they may perhaps be forgiven for doing so, that the “lip-service” paid to the Rule of Law more often than not exceeds or obscures any action taken. So much is lost in translation.

The suggestion that Dr Mamphela Ramphele, one of the founders of the Black Consciousness Movement, along with Steve Biko, a leading activist during the apartheid era, should stand against the ANC in the forthcoming elections, is perhaps a testament to the disillusionment felt by many in South Africa with the progress that has been made since the end of the Apartheid.

Yet the transformation of South Africa, with its apartheid regime, its denial of access to justice and its inequality under the law, to a multi-cultural society, with its remarkable Truth and Reconciliation Commission, is a reminder to us all as to what can be achieved through the Rule of Law. South Africa has come a long way since the end of the apartheid era. It is not yet perfect. But which Nation is? We have an 800 year history to fall back on. Yet, even now, many of us are concerned about an ever increasing denial of access to justice.

The conference in Cape Town was to have been attended, and addressed, by Beatrice Metetwa, a prominent Human Rights lawyer in Zimbabwe and a former President of  that country’s Law Society. But on 17 March she was arrested in Harare, allegedly for “obstructing or defeating the course of justice”. She had made “the mistake” of asking to see the search warrant of those police officers who were conducting a search of the home of her client, Thabani Mpofu, an aide to Prime Minister Morgan Tsvangirai.

In late 2012 an impeachment motion against Shirani Bandaranayake, the Chief Justice of Sri Lanka, was presented to the Sri Lankan Parliament, alleging a failure to disclose financial interests, abuse of power and disregarding the constitution. The Chief Justice denied the charges.

A parliamentary select committee, appointed to investigate the charges, found the Chief Justice guilty of some of the charges. However, the Supreme Court ruled that the select committee had no power to investigate allegations against the Chief Justice and accordingly her impeachment was unconstitutional. The committee’s findings were subsequently quashed by the Court of Appeal.

Nevertheless, the impeachment motion was passed and the Chief Justice was removed from office on 13 January 2013. The Chief Justice’s supporters accused the Government of pursuing an unconstitutional vendetta against her, of attempting to bully the judiciary, and lawyers.

Independence of the Judiciary, and indeed of all lawyers, is, of course, a cornerstone of the Rule of Law.

The Commonwealth Law Conference passed resolutions abhorring the treatment of lawyers and judges in both Zimbabwe and Sri Lanka. Both of those resolutions were followed by supportive resolutions of our Bar Council. Kate O’Regan talked of her appointment to, and the work of, the Constitutional Court in South Africa. Before her appointment, in 1994, aged 37, she was appointed as a judge to the newly formed Constitutional Court. In the 1980s she had practised as an attorney in Johannesburg specialising in labour law and land rights law, acting for a wide range of trade unions, anti-apartheid organisations and several communities facing the threat of evictions under apartheid land policy. She has served as a judge of the Constitutional Court until 2009.

The conference was attended by delegates from all over the Commonwealth. including our own Lord Chief Justice, Master of the Rolls, Chairman of the Bar, Maura McGowan QC, and Chairman of the young Bar, Hannah Kinch. They spoke on a diverse range of topics, including the balance between civil liberties and fighting terrorism, equality before the law and entry to the profession. I spoke about the legal landscape for alternative dispute resolution. In that context I opposed the notion of privatisating the courts, not realising at the time that it would become such a live point of discussion in our jurisdiction so soon after the conference.

People often asked me why the Bar Council attends events such as these. Well, it does so to promote business development opportunities for barristers and their high quality advocacy and advisory services, as well as serving as a medium through which to promote and defend the Rule of Law. It provides an opportunity to share knowledge and experiences of the opportunities and challenges facing colleagues, judges and legal academics from across the Commonwealth as we all get to grips with an increasingly globalised legal services market.

My experience as Chairman of the Bar was that much of the world, and the common law world in particular, looks to England and Wales for a lead on what to expect in their jurisdiction. That applies just as much to our practice methods, our ethical standards and our regulation as it does to our jurisprudence. We are seen by many as leading the common law world. And, perhaps selfishly as well as altruistically, we want to keep it that way. A common source of questions is the impact of our Legal Services Act, particularly pertaining to regulation, and having regard to the status of the Legal Services Board and its impact on our independence as lawyers. Alternative Business Structures and potential outside investment in legal businesses understandably causes ripples. Our status and reputation carry with them considerable strength in the marketplace as businesses, organisations and individuals from all over the world often turn to English barristers for legal support and advice. English law remains the predominant choice of law in the resolution of international disputes. The quality, integrity and independence of our judiciary, alongside a globally respected profession, provides us with a platform from which to develop business opportunities for the Bar. But the privilege that our international status affords us carries with it a responsibility to provide vocal and meaningful support for the Rule of Law. We do that by providing advocacy training, support to developing legal systems in Commonwealth jurisdictions or by speaking out where the independence of lawyers is being curtailed, hence the resolutions passed by the conference and by our Bar Council.

In addition to the main conference programme, we had the opportunity of holding a number of separate meetings with colleagues from across the Commonwealth. We had the opportunity to discuss closer business ties with those in Hong Kong, Malaysia and the Caribbean, which were extremely useful and which we hope will lead to good opportunities for the English Bar. But we also had extremely productive conversations with representatives from Zimbabwe. One cannot be other than humbled by the courage and commitment with which advocates from that jurisdiction are dealing with incredibly difficult and challenging domestic issues. We were able to meet with lawyers from Ghana, Kenya and Uganda to discuss the infrastructure and training of their legal professions and what we could do to support and cultivate their growth and the Rule of Law in those jurisdictions.

The conference concluded with a keynote address by Lord Judge, our own (soon to be) outgoing Lord Chief Justice. He provided a fitting ending to a superb conference and emphasised what large shoes his eventual predecessor will be seeking to fill later this year. Speaking on Equality under the Law, Lord Judge delivered a sensitive and powerful speech. It rewards being read in full (and can be at http://bit.ly/Zpg2Fy). He said this:

“Perhaps then, above all, above all else this conference in Cape Town has underlined for me that of all the many facets of the rule of law, we must remain resolved that whatever the colour of our skin, race, creed, gender, or whatever it might be, the starting principle for the rule of law is that, in law, we are equal, and that it is the fundamental obligation of the law to treat us so. Here in Cape Town we have been vividly reminded by the living recent history of South Africa that this indeed must be and must remain our common purpose, and that we must be vigilant to maintain it.”

Michael Todd QC is the Immediate Past Chairman of the Bar

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