Commonwealth Day message from Her Majesty The Queen, Head of the Commonwealth 12 March 2007
Alternative Dispute Resolution services from the Commonwealth Telecommunications Organisation (CTO)
Mr. Stephen Lewis and Prof. Wangari Mathaai to delIver keynote address 15th COMMONWEALTH LAW CONFERENCE
9 – 13 September 2007 Nairobi, Kenya
 
Chief Justice - Republic of Fiji
Law Societies united in condemnation of recent harassment of lawyers in Zimbabwe
Suspension of the Chief Justice of Pakistan
CLA Legal Writing Competition 2007
Forthcoming conferences
 

Commonwealth Day message from Her Majesty The Queen
and Head of the Commonwealth 12 March 2007

Today's Commonwealth is home to nearly a third of the world's population. Its almost two billion citizens come from so many faiths, races, cultures and traditions. I think that one of the reasons for the success of this organisation is that it draws not only on certain shared values, but also from the principles and practices of everyday life, which can be observed day after day in the cities, towns and villages of our 53 member countries.

Over thousands of years, the very basis of community life has been the pooling together by individuals of their resources and skills. Rather than having to be good at everything, people were able to practise their own skill or craft. The lesson of community life is that to flourish we must help each other. To do this, there has to be a sense of fairness, a real understanding of others' needs and aspirations, and a willingness to contribute. Despite its size and scale, the Commonwealth to me is still at heart a collection of villages.

In close-knit communities like these, there are beliefs and values we share and cherish. We know that helping others will lead to greater security and prosperity for ourselves. Because we feel this way, our governments and peoples aim to work even more closely together. And as individuals, we find that taking part in Commonwealth activities can be inspirational and personally rewarding. In today's difficult and sometimes divided world, I believe that it is more important than ever to keep trying to respect and understand each other better. Each and every one of us has hopes, needs, and priorities.

Each of us is an individual, with ties of emotion and bonds of obligation - to culture, religion, community, country and beyond. In short, each of us is special. The more we see others in this way, the more we can understand them and their points of view. In what we think and say and do, let us as individuals actively seek out the views of others; let us make the best use of what our beliefs and history teach us; let us have open minds and hearts; and let us, like the Commonwealth, find our diversity a cause for celebration and a source of strength and unity. This is a thought worth bearing in mind as we gather on Commonwealth Day: we are a thriving community; we value our past; we make the most of our present; and we are working together to build our future. By respecting difference and promoting understanding, that future will be a better one for us all. - Elizabeth R.
 
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40th Anniversary - The Cayman Islands Law Society

The Cayman Islands Law Society (CILS) was founded on 3 October 1967 by Arthur B. Hunter, Clifton Hunter, W.A. McLaughlin, W.S. Walker, Warren Conolly, Annie Bodden and J. D. Macdonald.    The business of the Society is managed by the Council, which originally consisted of a President, Vice President and three members; the first President was Arthur B. Hunter and his Vice President was W.S. Walker. From these very early beginnings a Society with only 7 members has now grown to one with over 300, a clear indication of the growing number of attorneys in the Cayman Islands. Membership of the Society is open to persons who are admitted as Cayman Islands attorneys-at-law and are in private practice or are employed in the private sector. The Society's current President is Charles Quin QC and the current Secretary and Treasurer is Alisdair Robertson.

Aims and Developments
The Society's main role is to promote and protect the character, status and interest of the legal profession in the Cayman Islands. In addition it has played a leading role in initiating and commenting on Cayman Islands legislation. Beyond that it has set out to encourage the study of law, to promote information on legal subjects and to create and manage a Benevolent Fund for legal practitioners in the Cayman Islands and their employees.

Legal Education
Over the years the Society's function has developed even further.   Under the guidance of its former President, Mr. Ramon Alberga QC, the Society initiated the publication of the Cayman Islands Law Reports, the first volume of which covered cases decided between 1984 and 1985.  Currently its main role is to make representations on matters of concern to the profession and, in particular, to provide input to the Cayman Islands Government on legislation and other matters that may affect its members or the Cayman Islands in general. The Cayman Islands Law School celebrated its 25 th Anniversary on 9 March 2007. This too has expanded over the years from 6 students in its first year to 120. It is fitting therefore that in its 40th Anniversary year the CILS has just launched a new website at http://www.caymanlawsociety.org/ The website contains general information on the legal system of the Cayman Islands, admission and complaints procedures in addition to a list of members and firms.

 
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Alternative Dispute Resolution services from
the Commonwealth Telecommunications Organisation (CTO)

Over the last two decades fast evolving technologies, widespread privatisation of state owned incumbent operators and the liberalisation of Telecoms markets have transformed the communications sector. Almost inevitably disputes will emerge and a failure to deal with these disputes effectively can have a severe negative impact on the industry, national economies and the wider population as whole.

Disputes can arise for a variety of reasons ranging from the interconnection needed for the provision of basic telephony services to complex issues related to IP based services. Typically, communications related disputes are dealt with by regulatory authorities and ultimately by courts of law. Both have the advantage of decisiveness and their procedures are normally well publicised and understood. However, the complexity and urgency of Telecoms related disputes have cast doubt over the ability of these institutions to deal with them comprehensively and affordably.

An Alternative
Alternative Dispute Resolution (ADR) mechanisms have become increasingly popular as a primary means of resolving Telecoms related disputes. Their effectiveness has been proven in developed markets such as the United Kingdom, where they complement formal adjudication processes in the provision of speedy and cost-effective dispute resolution.

In 2005, with the marketing assistance of the CLA, the CTO launched an ADR Centre to assist in the resolution of Information and Communication Technology related disputes in the Commonwealth. The intention of the CTO ADR Centre is to provide faster and more economical dispute resolution services by both establishing relationships with reputable neutral professionals and training suitable personnel from member countries. The CTO on-line dispute resolution platform is available at http://v2.theclaimroom.com/?host=238 and is a viable low cost alternative to face-to-face mediations. The Centre offers all ADR services including assisted negotiations, mediation, early neutral evaluation, adjudication and arbitration.

Further information on the ADR Centre can be found at http://www.cto.int/

 
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Mr. Stephen Lewis and Prof. Wangari Mathaai to deliver keynote address at
15th COMMONWEALTH LAW CONFERENCE 9 – 13 September 2007 Nairobi, Kenya

First held in 1955, the Commonwealth Law Conference is a prestigious event that brings together legal practitioners from all over the Commonwealth to debate current issues affecting practice and the profession, exchange views and experiences with colleagues and get up to date with the latest commercial products and services. For the first time in 20 years, the Conference returns to Africa and will be held in Nairobi, Kenya from the 9 th to the 13 th September 2007.

Up to 1000 lawyers representing 53 Commonwealth countries in all of the regions of the world are expected to attend the Conference which will be held at the Kenyatta International Conference Centre in the heart of Nairobi. Large delegations are anticipated from the East Africa region and also from Australia, Canada, Nigeria, South Africa and the UK.

The conference is being organised on behalf of the Commonwealth Lawyers Association (CLA) by the largest bar association in East Africa, the Law Society of Kenya, in conjunction with the appointed conference organisers, Liberty Africa Safaris.

The programme will include sessions on issues relating to Constitutionalism; Human Rights, Governance and the Rule of Law; Corporate and Commercial Law; The Legal Profession; Law in a Globalised Economy; and Contemporary Legal Issues. Highlights include keynote addresses from the former UN Special Envoy for HIV/AIDS in Africa, Mr. Stephen Lewis (Canada) and the winner of the Nobel Peace Prize in 2004, Prof. Wangari Mathaai (Kenya).

Further information is available at http://www.commonwealthlaw2007.org/
 
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Chief Justice - Republic of Fiji

On 5 December 2006, the Commander of the Republic of Fiji Military Forces (RFMF) assumed executive authority in Fiji as Acting President. Members of the government were placed under house arrest and a state of emergency was declared. On 3 January 2007, Chief Justice Daniel Fatiaki was given the choice of going on immediate “voluntary” leave or being removed from office. He elected to go on leave. On 15 January 2007 the Judicial Services Commission (JSC) made a recommendation that Justice Anthony Gates be appointed as Acting Chief Justice and he was so appointed on 16 January 2007.

The CLA commissioned James Dingemans QC and James Hawkins, both of 3 Hare Court Chambers, Temple, London to provide an opinion on the legality or otherwise of the recommendation and appointment of the Acting Chief Justice.

The opinion, which was delivered on 30 March 2007, considered the following questions:

Question 1 - Can a person other than the Chief Justice chair meetings of the JSC?
The Constitution of Fiji provides for the establishment of a JSC which consists of the Chief Justice (who is to be the chairperson), the chairperson of the Public Services Commission (PSC) and the President of the Fiji Law Society. It also provides that following the recommendation of the JSC and consultation with the Minister, the President may appoint a “judge or person who is qualified for appointment as a judge” to act as Chief Justice when the office of Chief Justice is vacant or if the Chief Justice is absent from duty or from Fiji or is unable to perform the functions of office.

Section 132 of the constitution makes provisions for the process of the removal of any judge from office. Such removal may proceed only if a judge is unable to perform the functions of his or her office “whether arising from infirmity of body or mind or any other cause)” or because of misbehaviour, but most pertinently he or she “may not otherwise be removed.”

Further the judge may be removed only after investigation by a tribunal consisting of clearly defined persons of high judicial standing in the case of misbehaviour or by a medical board in the case of inability. While the question of removing a judge has been referred to a tribunal or medical board the President may suspend the judge from office.

Counsel considered, citing in particular Rees v Crane [1994] 2 AC 173 , that it is well settled that “a Constitution must be given a purposive interpretation designed to secure the projections of the rights and freedoms guaranteed by the Constitution. Similarly the provisions of the Constitution relating to the JSC must be given an interpretation designed to insulate the judiciary from political influence.” The Privy Council in this case itself noted that “it is clear… that the Constitution provides a procedure and an exclusive procedure for such suspension and termination and, if judicial independence is to mean anything, a judge cannot be suspended nor can his appointment be terminated by others or in other ways.”

In the light of the above, Counsel considered that since an Acting Chief Justice cannot be appointed without the recommendation of the JSC it is clear that the JSC can legally meet if it is necessary to consider such a recommendation. It follows therefore that the JSC may meet without the Chief Justice as chairperson. However, in the absence of any constitutional provision for the appointment of a chairperson, Counsel considered that an existing member of the JSC (i.e. the chairperson of the PSC or the President of the Fiji Law Society) should chair the meeting.

Question 2 - If so, under what circumstances?
The circumstances in which an Acting Chief Justice may be appointed are limited by the Constitution and are operative only if the actual Chief Justice is absent from duty or from Fiji, or unable to perform the functions of office for any reason or if the office of Chief Justice is vacant.

Question 3 - Did such circumstances exist on 15 January 2007, having regard to the availability of Chief Justice Fatiaki?
Chief Justice Fatiaki was still Chief Justice and was not absent from Fiji. He had chosen to go on enforced leave rather than be dismissed, and, therefore, in the opinion of Counsel, his position was not “vacant” within the meaning of the Constitution. Furthermore, although the RFMF had purported to suspend the Chief Justice, such suspension did not comply with the provisions of Section 138(4) of the Constitution and was, as a result, unconstitutional and of no effect. Chief Justice Fatiaki was not therefore absent form duty and could have attended the JSC meeting held on 15 January had he known that it was to take place.

Question 4 - Was the JSC meeting of 15 January 2007 properly constituted by a person other than Chief Justice Fatiaki chairing that meeting?
Counsel considered that as the circumstances in which the Constitution would permit the JSC to meet without the Chief Justice as chairperson did not exist, it would follow that the JSC was not properly constituted at the 15 January 2007 meeting.

In addition Counsel considered that the 15 January JSC meeting was further rendered illegal by its being chaired by Justice Shameen, the senior puisne judge of the High Court. As she was not Chief Justice, nor Chairperson of the PSC, nor President of the Fiji Law Society, the Constitution did not provide for her membership, let alone her chairmanship of the JSC. The presence of a person not authorised to be there, as chairperson, would render the meeting in breach of the Constitution and, therefore, unconstitutional.

The Doctrine of Necessity
Counsel further considered the argument that the appointment of Justice Gates as Acting Chief Justice was justified on the basis of the doctrine of necessity.

Counsel stated that in order for the doctrine to apply it must satisfy the criteria set out in Mitchell v DPP [1986] LRC (Const) 35, 88 (Court of Appeal of Grenada):

  • An imperative necessity must arise because of the existence of exceptional circumstances not provided for in the Constitution, for immediate action to be taken to protect or preserve some vital function of the State;
  • There must be no other course of action reasonably available;
  • Any such action must be reasonably necessary in the interest of peace, order and good government; but it must not do more than is necessary or legislate beyond that;
  • It must not impair the just rights of citizens under the Constitution;
  • It must not be the one sole effect and intention of which is to consolidate or strengthen the revolution as such.

Counsel considered that the doctrine could not apply where, as a matter of fact, it remained possible for the constitutional mechanism for suspending the Chief Justice to be invoked and for a meeting of the JSC to take place without the presence of persons not authorised to be present. Further, Counsel considered that the doctrine could be applied only to uphold the rule of law and the existing legal order and not to undermine the protection of the Constitution.

The Fiji Law Society has since instituted legal proceedings challenging the appointment of the Acting Chief Justice by the JSC.
 
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Freedom of Information in Kenya

On 24 March 2005, a Draft Constitution of Kenya was passed at the National Constitutional Conference held at Bomas. This was subsequently rejected in a referendum held in November 2006 and is now subject to further debate. In April 2007, media representatives attending a 3-day Access to Information Workshop in Nanyuki called on Parliament to include, in the minimum reforms package, a clause on freedom of information that was contained in the rejected Draft Constitution. They argued that access to information was crucial in enabling the public to play their role as watchdog of the Government.

The Information Assistant Minister, Koigi wa Wamwere, stated that the Government was committed to pass the Freedom of Information Bill before the current Parliament is dissolved. Ms Priscillah Nyokabi of the International Commission of Jurists-Kenyan Section (ICJ) reinforced this by observing that "Article 51 of the draft highlighted the freedom that would enable Kenyans to access information on important Government operations on which it must be accountable. Article 51 covered this right adequately. It is something we had agreed upon as Kenyans, and was not part of the contentious issues." They further argued that making the right to access information and the enactment of the freedom of information law part of the minimum reforms should be treated as urgent.

Some concerns were however voiced by Wachira Maina, a constitutional lawyer, who cautioned that it would not be right for the freedom of information law to allow disclosure of critical security and intelligence information. Divulging such information might jeopardise national security, hence the need to consider security issues secret.
 
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Law Societies united in condemnation of recent harrasment of lawyers in Zimbabwe

On 7 May 2007, Mabvuto Herbert Hara, President of the Malawi Law Society, wrote to both the Malawian Government and Zimbabwean Embassy expressing condemnation of the arrest, without charge, of Zimbabwean human rights lawyers, Alec Muchadehama and Andrew Makoni on 4 th May 2007 while they were conducting business outside the High Court in Harare. While detained they were denied access to their counsel and their families, food and medical assistance. Furthermore, the authorities appeared to refuse to comply with a High Court order directing the police to allow access to the lawyers. Such treatment amounts to the harassment and intimidation of human rights defenders in Zimbabwe and shows disrespect for the rule of law. The President called for the release of the lawyers without delay and urged respect for human rights and the rule of law in Zimbabwe.

On 11 May 2007, Fiona Woolf, President of the Law Society of England and Wales, wrote to the Zimbabwean Minister of Home Affairs and the Zimbabwean Minister of Justice, Legal and Parliamentary Affairs to express her deep concern at the arrest of lawyers Alec Muchadehama and Andrew Makoni. She also expressed dismay at the reports of the dispersal and assault of lawyers (including on Beatrice Mtetwa, President of the Law Society of Zimbabwe) who were participating in a peaceful march on Tuesday 8 May 2007. Notice of the march was given in accordance with the terms of Section 24 of the Public Order and Security Act, and the purpose was to submit petitions to the Minister of Justice and the Commissioner of Police in protest against the ongoing harassment of lawyers in the course of their duties.

In particular, she noted that:

•  The Zimbabwean government was obligated under international law to protect the rights of lawyers, including those engaged in the promotion of human rights;

•  Under the U.N. Basic Principles on the Role of Lawyers, adopted in 1990: Governments shall ensure that lawyers (a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference … and (c) shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics. (Article 16);

•  Under the Declaration on Human Rights Defenders, adopted in 1998 by the U.N. General Assembly: Everyone has the right, individually and in association with others, to the lawful exercise of his or her occupation or profession. Everyone who, as a result of his or her profession, can affect the human dignity, human rights and fundamental freedoms of others should respect those rights and freedoms and comply with relevant national and international standards of occupational and professional conduct or ethics. (Article 11)

On 14 May 2007, the President of LAWASIA, Mah Weng Kwai, wrote to the Minister of Justice expressing concern on behalf of lawyers in the Asia Pacific region and condemning the violent attacks on members of the legal profession who had gathered in legal circumstances to express their proper and professional concern about issues of fundamental and important concern to all lawyers.

On 15 May 2007, registered legal practitioners and officers of the court from Manicaland marched in peaceful protest against the general harassment of legal practitioners in the course of their duties. 10 lawyers who were participating in the march were arrested and subsequently released without charge. They did, however, succeed in delivering copies of the same Law Society of Zimbabwe petition that lawyers in Harare had attempted, and failed, to do a week earlier.

Many other legal associations such as the Law Council of Australia, the SADC Lawyers Association, the East Africa Lawyers Society, the Commonwealth Lawyers Association, the International Bar Association, the Solicitors International Human Rights Group and the Bar Human Rights Committee have issued statements and/or written to the relevant authorities expressing their concern at recent developments concerning the legal profession in Zimbabwe.
 
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CLA Legal Writing Competition 2007

The CLA is organising a legal writing competition and papers are welcome from law students, trainee solicitors, pupil barristers, students-at-law and lawyers within 5 years call in any Commonwealth jurisdiction, including Hong Kong. The topic is to ‘Assess the impact of globalisation on legal practice in the Commonwealth'. The winning author will receive full sponsorship to attend the 15 th Commonwealth Law Conference in Nairobi, Kenya from 9 to 13 September 2007.

Typed entries of no more than 2000 words of original, unpublished work, together with proof of eligibility, should be submitted by 14 June 2007. The judges' decision is final and no correspondence will be entered into. Please send entries to the Commonwealth Lawyers Association (CLA) using the contact details below.
 
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UK Government attempts to remove the right to a jury trial in fraud trials

The Fraud (Trials without a Jury) Bill presented by the Government was passed by the House of Commons by only 35 votes. It was subsequently presented to the House of Lords on 21 March 2007, where peers voted on an amendment tabled by Lord Kingsland which effectively prevented the Bill from becoming law in the current parliamentary session. This delaying motion was approved by 216 votes to 143. The Bill is the Government's third attempt to remove juries in serious fraud trials, despite continuing opposition.  The Law Society of England & Wales argued that trial by jury is a fundamental right and an essential safeguard for the rule of law.  The Government had argued that the Bill is necessary because the length of complex fraud trials imposes too big a burden on jury members. 

Fiona Woolf, President of the Law Society of England & Wales, stated that “ Juries are an essential foundation of our justice system. They provide a barrier against oppressive and politically motivated prosecutions. They enhance the transparency of the court process and promote public confidence in the criminal justice system.” In her view the Bill could have been the start of a much broader attack on jury trials, because that argument could just as easily be applied to other lengthy criminal proceedings. “Juries are not to blame for lengthy trials. Better case management is required and the criminal procedure rules and protocols from complex cases introduced by Lord Woolf must be given an opportunity to work before any decision is taken to abolish juries."
 
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Elections in the Federal Republic of Nigeria

The Presidential and National Assembly elections were held on 21 April 2007. Having deployed members from its 88 branches all over Nigeria to observe the conduct of the elections the Nigerian Bar Association (NBA) issued an interim report on 24 April 2007.

The report commenced with the observation that the reservations that had been expressed concerning the Governorship and Houses of Assembly elections held on 14 April had not been addressed in the conduct of the presidential elections.

While recognising the difficulty and complexity of arranging elections, the NBA considered that the electoral process was consistently deteriorating and that the manifest flaws of the 2007 elections were the result of gross incompetence on the part of the Independent National Electoral Commission (INEC), the body charged with the conduct of the elections. The NBA attributes this to the INEC misdirecting itself as to its priorities. Rather than concentrating on its primary assignment which was to ensure free and fair elections, it engaged itself in the distracting controversy over its powers of disqualification or otherwise.

The NBA called on those aggrieved by the election process to seek redress through the election tribunals and on the judiciary to act expeditiously in determining electoral disputes. Lawyers engaged at the tribunals have been urged to avoid unnecessary delaying tactics and the NBA itself is fielding a corps of observers to monitor the workings of the Election Petition Tribunals.

The NBA made a number of recommendations as follows:

  • There should be a fundamental change in the laws that govern elections in order to guarantee the complete independence of the INEC. These should include fiscal independence and non-partisanship of its personnel at all levels;
  • The INEC should be subjected to a complete overhaul to make it more independent, credible and transparent;
  • INEC officials who connived with politicians and security agents to undermine the elections should be prosecuted and the National Assembly should be reconvened to investigate the irregularities leading to the flawed elections with a view to prosecuting those responsible.

In their report to the Commonwealth Secretary General, the Commonwealth Observer Group echoed the sentiments expressed by the NBA, in addition to making the following recommendations:

  • The INEC should be responsible for a pervasive voter education campaign before the election and that this should begin much earlier than in previous elections;
  • The recruitment and training of INEC employees should begin well in advance of the election in order to avoid problems of understaffing and lack of adequate preparation;
  • Women should be actively encouraged to participate in the election as both candidates and voters.

The new President of Nigeria, Alhaji Umaru Musa Yar'Adua, at his inauguration on 30 May, pledged to embark on a comprehensive electoral reform to correct perceived lapses of Nigeria's electoral system. He said that he would set up a national panel to review the entire electoral process in order to bring it up to international standards. The proposed panel would be a national priority after the end of the legal processes over the outcome of the polls. Accordingly he asked aggrieved parties to seek redress at the election petition tribunals.

 
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Innovative approach to reduce the shortage of legislative drafters

In April 2007, 14 lawyers graduated from a specially designed course developed and co-ordinated by the Commonwealth Secretariat and the University of Guyana whose purpose is to address the shortage of legislative drafters in the Caribbean region.

The Secretariat receives a large number of requests, especially from countries in the Caribbean, to provide assistance with legislative drafting. Such drafting is a highly specialised legal skill which involves lengthy postgraduate training. However, these skills are often lost when drafting experts move on to other, more lucrative legal disciplines. In order to meet this need and thereby fill the gaps in particular regions it has often been necessary for the Commonwealth Secretariat to move experienced drafters around the Commonwealth with the consequence that drafting skills in other regions have been depleted.

Remedy
The Secretariat has now developed a condensed three-month certificate programme which allows local lawyers to receive training to develop their legislative drafting skills. The course is the first of its kind in the Caribbean and is open to qualified lawyers who have been practising for four to five years.

Dr Deryck Brown, Head of the Caribbean and Mediterranean Section in the Commonwealth Secretariat's Governance and Institutional Development Division, said that the certificate course does not mean that lawyers become professional drafters, but it does aim to teach the fundamentals of drafting and to introduce participants to the discipline as a profession.
 
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Suspension of the Chief Justice of Pakistan

On 9 March 2007 Chief Justice Muhammad Chaudry of the Pakistan Supreme Court was suspended from office. Chief Justice Chaudry, who was appointed as Chief Justice in 2005, rejected the allegation that he had used his office to obtain employment for his son and filed an application in the Supreme Court seeking early hearing of his petition in which he raised several constitutional questions concerning judicial independence, access to justice and the very existence of the Supreme Court.

ICJ Response
The International Commission of Jurists (ICJ) indicated on 13 March 2007 that it was concerned about the unconstitutional suspension of the Chief Justice. It called on the Government of Pakistan to act urgently to demonstrate its commitment to the independence of judges and lawyers by releasing the Chief Justice from effective house arrest, according him full rights to defend himself in any truly independent and transparent investigation into allegations against him, and by allowing lawyers to protest peacefully.

The ICJ subsequently carried out an investigative mission to Pakistan to examine events and developments and issued its preliminary conclusions on 26 April. A more detailed report is being prepared.

The main points of its interim report are as follows:

• It would appear that the Executive's action was a response to the judicial activism of the Chief Justice. The Mission was directed to the Pakistan Steel Mills case, where the Supreme Court struck down a privatization deal with the Government. In several cases the Supreme Court had invoked suo moto jurisdiction (i.e. on its own motion or initiative) to deal with a significant number of complaints of enforced disappearances – complaints which the Chief Justice had called upon the police/security agencies to answer.

• While the Chief Justice was held virtually incommunicado on the day of his suspension, Justice Javed Iqbal, was sworn in as Acting Chief Justice (ACJ) “with undue haste.”

• Acting again with undue haste, on that same evening, the Supreme Judicial Council (SJC), a body created under Article 209 of the Constitution of Pakistan, was convened. This Council was presided over by the newly sworn in ACJ. In a written Notice, the SJC indicated that it had received a Reference by the President under Article 209 of the Constitution against the Chief Justice, to answer the question of whether the Chief Justice was guilty of misconduct. The SJC invited the Chief Justice to appear before it on 13 March and finally "ordered" him not to perform any of the functions of his office.

• Although the legal profession in Pakistan accepted that judges must be accountable and subject to disciplinary proceedings for any misconduct, they considered that the manner in which the Chief Justice was treated was unacceptable and an attack on the independence of the judiciary.

• The Chief Justice filed a Petition before the Supreme Court challenging the competence of the SJC to inquire into his alleged misconduct and sought the recusal of three of the SJC's members. On 24 April, the presiding Judge, Justice Sardar Raza, did in fact recuse himself, as he was one of the five original members of the SJC panel on 9 March who issued the Notice restraining the Chief Justice from exercising his judicial functions. The Mission considers this to have been the correct decision.

• The legal profession of Pakistan has rightly sought to demonstrate in a peaceful manner its belief in and support for judicial independence in the country. Judicial independence and the separation of powers are fundamental principles of the rule of law and of a democracy and should always be defended when under threat. The lawyers are also exercising their legitimate right to freedom of expression and assembly.

• Several lawyers, particularly in Lahore, stated that force had been used by the police in dealing with peaceful demonstrators and that office-bearers of the Lahore High Court Bar Association had been arrested and detained in custody overnight.

•  Although in recent years the media have enjoyed greater freedom in Pakistan, they have now indicated that pressure has been exerted on them both subtly and overtly, to report recent events in a particular manner. It is important to maintain the right to freedom of expression and of the media.

•  The Mission does not wish to comment on the constitutional issues relating to the Reference, as they are currently before the Supreme Court.

•  In conclusion, the Mission considers that the present judicial crisis, if not resolved soon, could deteriorate and cause irreversible damage to constitutional order in Pakistan. The Mission urges the Government to address the underlying causes of this crisis and to restore a fundamental democratic principle that is pivotal for the rule of law in Pakistan - the independence of the judiciary.

More Recent Events
On 5 May the house arrest of Chief Justice Chaudry was brought to an end.

On 25 May and in his first public appearance since the forceful suppression of the 12 May demonstration in Karachi, Chief Justice Chaudry spoke at a conference organised by the Supreme Court Bar Association. He condemned authoritarianism because it “is a system inclined towards the abuse of power, misuse of authority and devoid of respect for the fundamental rights of the citizen like right to life, liberty, equality and prosperity.” He added that such a system paid no heed to fundamental rights like freedom of conscience, thought, expression, religion, movement and association.

“A vibrant, dynamic and independent judiciary will not only help reduce poverty, but will also establish our credentials in the comity of nations as a nation that values and respects the rule of law and human rights.”
 
O B I T U A R I E S
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Chief Justice of Ghana, Justice George Kingsley Acquah (6 March 1942 – 25 March 2007)

George Kingsley Acquah, the Chief Justice of Ghana, died of cancer on 25 March 2007 in the Military Hospital, Accra.

He was born in Sekondi in the Western Region and attended the Adisadel College, Cape Coast from 1957 to 1963, where he obtained both the Ordinary and Advanced Level Certificates of the West African Examinations Council.

Justice Acquah graduated from the University of Ghana, Legon, where he obtained first a degree in Philosophy followed by an LL.B Honours in Law. In 1970 he entered the Ghana Law School where he obtained the professional certificate in Law. After being called to the Bar in 1972 he worked in private practice in Cape Coast from 1972 to 1989.

He sat as a High Court Judge from 1989 to 1994, an Appeal Court Judge from 1994 to 1995 and as a Supreme Court Judge from 1995 until his death. Justice Acquah, who was appointed as Chief Justice in 4 July 2003, will be remembered for attempting to reconcile Ghana's traditional adjudication laws with the imposed colonial ones. He also held national and international positions such as Patron of the Commonwealth Legal Education Association. The first Chief Justice to be fully educated and trained in Ghana, Justice Acquah was awarded the Order of the Star of Ghana in June 2006.

Justice Acquah is survived by his wife, Jane, six children and six grandchildren.

Mr. William Turnbull - Hong Kong

Mr William Turnbull died in Hong Kong on 4 th March 2007.

Mr Turnbull was Chairman of the successful Commonwealth Law Conference that was held in Hong Kong in 1983. It was at this conference that a steering committee was established with responsibility for overseeing the replacement of the Commonwealth Legal Bureau by the CLA. The Commonwealth Law Conference Foundation Limited was also established using the surplus funds generated by the conference. This Foundation has continued to support the conference over the years by providing assistance for delegates from developing Commonwealth countries to attend the CLC.

Mr William Turnbull made an important contribution to the CLA over the years and his input and support will be greatly missed.

Mr. Everest Selby - Ghana

Mr Everest Selby died on 5 th May 2007. He was a passenger on the Kenya Airways flight that crashed in Cameroon.

Mr Selby had only recently joined the Legal and Constitutional Affairs Division (LCAD) of the Commonwealth Secretariat and was travelling to a workshop in Swaziland at which he was due to give a presentation on the Commonwealth (Latimer House) Principles. This is an issue that is particularly important to the CLA and it is shocking that he lost his life whilst trying to advance this worthy cause.
 
FORTHCOMING CONFERENCES
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Southern African Development Community Lawyers' Association (SADC LA) Dar es Salaam, Tanzania
21 st – 24 th June 2007
The theme of the conference is “Strengthening the Rule of Law and the Independence of Judiciary within the SADC region”
http://sadclawyers.com/

15th Commonwealth Law Conference (CLC) Nairobi, Kenya
9th – 13th September 2007
The theme of the conference is “Governance, Globalisation and the Commonwealth”
http://www.commonwealthlaw2007.org/

 
COMMONWEALTH LAWYERS ASSOCIATION (CLA)
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, with the highest standards of ethics and integrity, serves the people of the Commonwealth. Lawyers have much to learn from the comparative experience of other Commonwealth countries and share substantial common ground in their legal systems, education and practice. The Editor welcomes contributions which can be sent directly to cla@sas.ac.uk Council:
Graeme Mew (Canada) – President
Ron Heinrich (Australia) – Vice President
Tim Daniel (England & Wales) - Treasurer
Ahmednasir Abdullahi (Kenya)
Eliza Ndjavera Angula (Namibia)
Dr Lloyd Barnett (Jamaica)
Tinoziva Bere (Zimbabwe)
Tim Bugg (Australia)
James Dingemans QC (England & Wales)
Mohamed Husain (South Africa)
Graham Leung (Fiji)
James McNeill QC (Scotland)
Berthan Macaulay Jnr (Sierra Leone)
Colin Nicholls QC (England & Wales)
Shelendra Nonis (Sri Lanka)
Dato Roy Rajasingham (Malaysia)
Hugh Robertson QC (Canada)
Mohammad Akram Sheikh (Pakistan)
Soli Sorabjee (India)
Ex – Officio:
Dr Venkat Iyer (England & Wales)
Editor ‘The Commonwealth Lawyer'
Dr Dan Kagagi (Kenya)
Betty Mould –Iddrisu (Ghana)
Peter Williamson (England & Wales)

Executive Committee:
Graeme Mew
Ron Heinrich
Tim Daniel
James Dingemans QC
Alison Hook
Colin Nicholls QC
Tim Otty QC
Boma Ozobia
Arvinder Sambei
Dr Peter Slinn


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