Written by Brian H. Speers, Immediate Past President of the Commonwealth Lawyers Association (2019-2023) and a solicitor in Northern Ireland.
This article was first published in The Parliamentarian (2023 Issue Four)
The Commonwealth (Latimer House) Principles on the three branches of government (the Commonwealth Latimer House Principles or CLHP) were both far-sighted and far-reaching. They remain as relevant and important today as they were when adopted at the Commonwealth Heads of Government Meeting (CHOGM) in Abuja, Nigeria in November 2003. During the four years in which I was President of the Commonwealth Lawyers Association (CLA), I regularly referenced the CLHP in statements or speeches.
The Commonwealth Latimer House Principles deal, of course, with the three branches of government (the Executive, the Legislature and the Judiciary). That three-cornered separation is a strong and fundamental foundation for democracy. However, the CLHP are a rich source of other observations, principles and guidelines which also enhance the appropriate functioning of democracy.
Democracy is experiencing challenge in 2023, perhaps not anticipated in 2003. The use of instant communications, artificial intelligence and the development of what seems to be a play book of steps to be taken by autocrats and dictators, all threaten the foundations of democracy. Public statements disrespecting the judiciary do not help. Overreaching power grabs by governments do not help. A lack of effective opposition and accountability also deprives societies of democracy operating within the Rule of Law.
The importance of preserving the confidence of the people in the institutions by which they are governed is relevant and important. 20 years on from the adoption in Abuja of the CLHP it is appropriate to reflect on how these Principles have contributed and can contribute to the preservation of an effective democracy.
Others reflecting on the CLHP will no doubt consider the Principles from the point of view of the Government or Parliament or the Judiciary. From the perspective of the Commonwealth Lawyers Association (CLA), I would like to focus on what the Principles have to say about the role of women, about the legal profession, about civil society and about freedom of the press.
These are not categories that deal with the three branches of government, but they are also fundamental to upholding democratic values in a society respectful of the Rule of Law.
Twenty years ago, it was far-sighted to include reference to the role of women in democracy in the CLHP. Principle V b states that subject to merit and proven integrity being the criteria of eligibility for appointment to public office “measures may be taken…to ensure that the holders of all public offices generally reflect the composition of the community in terms of gender,…”. The Latimer House Guidelines for the Commonwealth (the Guidelines) out of which evolved the Principles, specifically encourage improvement in the number of women participating in politics and encourages Commonwealth member states to proactively seek women candidates to stand for election and to use imaginatively proportional representation to assist in the election of women. There is also an encouragement to publish data and information as to the degree of representation of women in politics.
The encouragement in the Principles to take measures to ensure in effect that public bodies are reflective of the community and of genders is striking. However, twenty years on has the representation of women in public life improved?
At present, there are many Chief Justices of Commonwealth member states who are women. In 2021, in my home jurisdiction of Northern Ireland, Dame Siobhan Keegan was appointed Lady Chief Justice. At the recent CLA conference in Goa, India in March 2023, delegates were addressed by Chief Justice Tengku Maimun Tuan Mat, the Lady Chief Justice of Malaysia who was joined in a judicial session by the future Lady Chief Justice of India. In England and Wales just recently, Dame Sue Carr was appointed to become the first woman to hold the office of Chief Justice in England and Wales. Hopefully these prominent women will continue to encourage the role of women in public office.
The CLA is primarily an organisation of legal practitioners. While the judiciary is rightly emphasised as one of the key pillars of democracy, a vibrant independent legal professional also has an important place.
The CLA stands robustly in favour of an independently appointed judiciary, properly financed, with permanent appointments made by an independent Judicial Appointments Commission. Judicial appointments are a controversial matter in most Commonwealth jurisdictions and a session at the 23rd Commonwealth Law Conference in Goa in March 2023 was devoted to a consideration of judicial appointments.
However important is the role of the Judiciary, it is noteworthy that the Commonwealth Latimer House Principles also acknowledge the importance of an independent legal profession. Principle IV on the Independence of the Judiciary includes “An independent, effective and competent legal profession is fundamental to the upholding of the rule of law and the independence of the judiciary.”
Lawyers uphold the Rule of Law in all walks of life from registering ownership of property, to forming companies and businesses enabled to undertake trade and business. They administer and distribute estates and they have a role in the resolution of disputes. They step in to challenges in family life, protecting children and negotiating separation of matrimonial assets. These somewhat unheralded and normal legal activities are fundamental to the operation of society.
The Guidelines at paragraph 8.3 recognise that “an independent organised legal profession is an essential component in the protection of the rule of law.” The Guidelines go on to encourage adequate legal aid schemes to be provided for poor and disadvantaged litigants, that legal professional organisations should assist in the provision of access to justice and that the Executive should restrain from obstructing the functioning of an independent legal profession.
CLHP Principle VII c encourages a recognition that democratic principles require the actions of government to be open to scrutiny by the Courts. The rationale given is that this would ensure that decisions are taken to comply with the Constitution and relevant statutes and other law, including law relating to the principles of natural justice. Who is better placed to undertake and argue for judicial review of an overreaching Executive or the non-compliant public authority than practising lawyers who can independently and fearlessly represent their clients and hold to account the Executive or public authorities.
It is of concern that many politicians disrespect the role of lawyers in holding governments to account. Lawyers are seen as a nuisance. They are accused of creating delay in the implementation of proposed legislation. They challenge decisions. However, Governments should be held to account, and must be subject to challenge within the law in order that they make decisions which can withstand scrutiny when analysed in the context of the Constitution, relevant statutes and the principles of natural justice. Challenge and accountability by an independent legal profession will result in appropriate legislation, stronger institutions and contribute to public trust.
To disparage lawyers publicly is to do a disservice to the Rule of Law. It is also inconsistent with the CLHP which respect an independent legal profession and acknowledge the importance of judicial review and accountability.
Accountability, transparency, intolerance of corruption and operation within the law and the Constitution can only be achieved if there are checks and balances, if there are constraints, if there is a real prospect of being held to account by a properly independent judiciary in cases brought by a properly independent legal profession. Without those constraints there will be, and have been, government actions which are taken with impunity, benefitting self-interest and facilitating corruption.
From the perspective of the CLA, the existence of an independent, and not a compliant, legal profession is fundamental, and we shall continue to emphasise and advocate for that position. Indeed, at the Commonwealth Law Conference in Goa, there was an important Bar leaders’ meeting of some 48 jurisdictions which produced the ‘Declaration on Preserving and Strengthening the Independence of the Judiciary and on Ensuring the Independence of the Legal Profession’ (the “Goa Declaration”).[i] This Declaration reinforces and complements what the CLHP say about Judicial and legal profession independence.
The influence of the CLHP can also be seen in the Declaration on ‘Freedom of Expression and the Role of Media in Good Governance’ (the Media Principles). This Declaration was endorsed by the Commonwealth Law Ministers at its meeting in Mauritius in 2022.[ii] I was pleased to introduce the Media Principles to the assembled Commonwealth Law Ministers, and I noted that they were “a direct descendant” of the Commonwealth Latimer House Principles. The CLHP in Principle IX reference that oversight of the Government is an important element of democracy particularly with regard to corruption.
Principle IX goes on to state that a transparent and accountable government together with freedom of expression encourages the full participation of its citizens in the democratic process and at Principle IX b there is specific reference to how government’s transparency and accountability “is promoted by an independent and vibrant media which is responsible, objective and impartial and which is protected by law in its freedom to report and comment upon public affairs”.
The Media Principles accepted by the Commonwealth Law Ministers for recommendation to the Commonwealth Heads of Government Meeting (CHOGM) in Samoa in 2024 are an important elaboration of the media freedom references in the CLHP.
Of course, twenty years ago, the media and the press were different. Today we have social media, artificial intelligence, expanded use of the internet and 24-hour live news feeds which all create instant news and instant awareness, sometimes not particularly moderated by reflection and balance or indeed accuracy. It is vital that the role of the media in good governance is neither overlooked nor endorsed without qualification. Proper accountability, shining a media spotlight into dark corners of decision-making and holding, in the public interest, politicians and the Executive to account, is fundamental to constraining the actions of the Executive by exposing corruption, unfairness and breaches of both the Constitution and the fundamental principles of natural justice and the Rule of Law.
This brings me to my final observation about the Principles which is the reference to the important role of civil society. Principle X encourages Commonwealth governments and Parliaments to recognise the role that civil society plays in the implementation of the Commonwealth’s fundamental values. Governments are encouraged to strive for a constructive relationship with civil society “to ensure that there is a broader opportunity for lawful participation in the democratic process”.
Civil society organisations play a vital role in providing an opportunity for the sharing of ideas, for the promotion of alternative strategies and thinking, for collaboration in the interest of minorities and disadvantaged communities. It is vital that civil society organisations thrive and are supported. Far from being a nuisance or a bothersome noise interfering with what the politicians wish to do, civil society reflects the needs and wishes and aspirations of the people. The role of civil society is rightly recognised in the Commonwealth Latimer House Principles
In all of these areas, the role of women, the importance of the independent legal profession, media freedom and civil society, we find a common thread. This is that effective democracy must ensure that there is appropriate representation reflective of the community, there is a holding to account of the Executive and public bodies and an ability to comment and disagree in accordance with some fundamental principles of the Rule of Law.
While the Commonwealth Latimer House Principles rightly focus on the separation of the three branches of government, it is appropriate also to reflect on these other and wider areas. Twenty years on from their adoption, the Commonwealth Latimer House Principles and their related Guidelines remain relevant and important, and it is gratifying that both in the Goa Declaration and in the Media Principles, they have generated other legacies which go towards strengthening and upholding democratic principles throughout the Commonwealth.
The Commonwealth Lawyers’ Association (CLA) exists to maintain and promote the rule of law throughout the Commonwealth by ensuring that an independent and efficient legal profession serves the people of the Commonwealth. It seeks to uphold the rule of law by encouraging exchanges between members of the profession through projects, conferences and workshops and by driving improvements in legal education.
The CLA regularly engages with other Commonwealth organisations on Commonwealth working groups and projects and is an accredited partner organisation of The Commonwealth. The CLA hosts a conference in a member state every two years – recent conferences were in Livingstone in Zambia in 2019, in Nassau in The Bahamas in September 2021 and in Goa in India in March 2023 – with the next conference due to be in Malta in 2025.
Visit www.commonwealthlawyers.com for further information.
References:
[i] The Goa Declaration - ‘Declaration on Preserving and Strengthening the Independence of the Judiciary and on Ensuring the Independence of the Legal Profession’ signed at the Commonwealth Lawyers Conference on 5 March 2023 – click here.
[ii] See ‘Freedom of Expression and the Role of the Media in Good Governance’ by David Page, The Parliamentarian 2023 Issue One, pages 55 to 57 and ‘To protect the truth, we must protect the truth tellers: The Commonwealth and Media Freedom’ by William Horsley, The Parliamentarian 2023 Issue Three, pages 224 to 227.
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