CLA News / The Hon Michael Kirby AC CMG’s transcript from a presentation to the Sydney Institute on “The Commonwealth of nations: from allegiance to Commonwealth Charter values”


Reproduced with the gracious permission of The Hon Michael Kirby AC CMG

Thank you all for being here tonight for this talk on a global topic of importance.

I will be explaining what the Charter of the Commonwealth says; how it came about; and what its significance may be in the future. As Gerard Henderson has mentioned, I was here in this Institute, a few weeks back, launching an excellent book by Anne Henderson – Menzies Versus Evatt. It is relevant to this occasion because the issues which I am going to describe really arose out of events that were happening in the extremely busy time recounted in that book. The end of the Second World War; the explosion of the nuclear bombs over Hiroshima and Nagasaki; and the establishment of the United Nations at a great conference in San Francisco in 1945.

The new President of the United States in 1945, President Harry S Truman, was there to finish the work that Franklin Delano Roosevelt had intended to accomplish before his death. At that time, the world was exhausted. The British Empire was exhausted. The war had concluded.  The allies had won. But it was a time of enormous change. And the change extended to the British Commonwealth, as it was then called, before it became known as the Commonwealth of Nations.  Do not call the Commonwealth of today the British Commonwealth.  That is a mistake. The British Commonwealth expired four years after the heady events in 1945.  It was replaced by the Commonwealth of Nations, the Commonwealth of today.

In 1947, there was a belated fulfilment of the promise that the United Kingdom had given to the people of India following the decision which led to the termination of British rule over India. The ‘jewel in the crown’ was lost. At least lost to the allegiance to the King. Allegiance had been, up until that time, the real foundation (or the binding glue) that bound the British Empire together. When, following an election that turned India from an empire into a nation in the Commonwealth, and Jawaharlal Nehru was elected to be the prime minister of India, he made it clear that allegiance to the King would not be acceptable to the newly independent nation. As a result of that, it looked as if India would leave the Commonwealth as it departed the British Empire.

There were four political leaders who played an extremely important part in the establishment of the new Commonwealth, Clement Attlee (UK); Louis St. Laurent (Canada), Ben Chifley (Australia) and Jawahalal Nehru (India). At about the same time national leaders were involved in negotiations that led to the adoption of the Universal Declaration of Human Rights in 1948.  They were present for the steps that were about to unfold in 1949. One was Ben Chifley, who succeeded John Curtin as wartime prime minister when Curtin died in office in July 1945. Ben Chifley was in London. So was H.V. Evatt. Evatt was a most extraordinary man, and I was reading about his career, even this morning, relating to his role in the adoption of the Universal Declaration of Human Rights. He took part in the negotiations for the Charter of the United Nations adopted in 1945.  And he took an extremely active part in the negotiations that led to the adoption of the Universal Declaration of Human Rights.

We are all going to hear a lot about the Universal Declaration of Human Rights in the next few months, because on 10 December 2023, we’ll be celebrating its 75th anniversary. That was a significant achievement of Evatt. All of this and more is told in this excellent book by Anne Henderson. She doesn’t specifically cover the issues of the Commonwealth and the fading British Empire. I think that she was probably not unhappy about the fading part of the British Empire. But this is what I’m here to talk about that.  I am here now to talk about how the British Empire and Commonwealth coped with the change in the status of India.  And what they did about it.

It did look as if the Indians would depart the Empire.  Certainly, they would not accept the normal basis of the Commonwealth Prime Ministers conference which was convened periodically in London. At the conference in 1947, Mr Chifley, in consultation with Dr Evatt, joined with Clement Attlee, the Labour Prime Minister of the United Kingdom, in suggesting a new and different foundation for the British Commonwealth.  This arose directly from the intimation that India was not willing to continue in the old relationship of common allegiance to the King (King George VI).

Accordingly, Mr Chifley suggested, and Mr Attlee agreed, and ultimately Jawaharlal Nehru agreed, that in the future, the new Indian republic would become a member of the Commonwealth of Nations. And that this would not involve allegiance to the King.  But free association in the Commonwealth.  The King, as monarch of the United Kingdom, would, as such, become the titular Head of the Commonwealth. And that would be a new status for a new relationship. As Mr Chifley said, “monarchy is a handy constitutional fiction” for the purpose of resolving this particular problem and perhaps other problems as well. As such, the King of the United Kingdom became the Head of the Commonwealth. King George VI said at the time, “I’m very glad that the prime ministers have been able to find a solution to this. I just have to be content with being ‘as such.’ So that was the relationship stamped on future conduct of affairs of the Commonwealth countries that wanted to become republics. As time evolved, the great majority of the countries of the old British Empire became members of the Commonwealth – but also republics, after a short but decent interval. They accepted the monarch of the United Kingdom to be the Head of Commonwealth.  Another handy constitutional fiction was adopted.

In 2018, at the last Commonwealth conference, in which Queen Elizabeth II presided as Head, in London, the decision was taken that Prince Charles, as he was then, would become the next Head of the Commonwealth on the demise of the Crown. The Queen expressed her “sincere wish” that her son and heir would become her successor as Head of the Commonwealth.  The Commonwealth leaders at Buckingham Palace agreed to that wish. That was, therefore, the pathway for the accession of King Charles III. As such, he has become, on the death of the Queen, the new Head of the Commonwealth. That is a role that he holds to this day. This is the background to the felt need at the Commonwealth Prime Ministers conference in 1949 to have a new and different basis for the relationship of countries with a shared history in the British Empire.

The Commonwealth of Nations that was so created is a remarkable institution. It brings countries together that (when it’s analysed) are bound together by their history of a colonial relationship with Great Britain during the times of Empire. A few other countries have slipped in more recently. However, overwhelmingly, of the 56 countries of the Commonwealth, 52 were earlier members of the old British Empire. They attend regular meetings.  These are graced by the presence of the monarch of the United Kingdom and the other Realms.  That is how the Commonwealth is now established.  There are 5 prospective members.

A number of conferences – so called CHOGM conferences after Commonwealth Heads of Government – have taken place, approximately in every second year, since the last meeting of Commonwealth Prime Ministers in 1949. The result of those conferences has been the adoption of a a series of statements at the end of each conference. These have set out what are called the “principles” of the meeting that has been held. That set of principles became a foundation for building on, and expressing the “values” of the Commonwealth. However, a question was then presented: What was the value of the constitution once you abandoned allegiance to the monarch? What was the value that kept the Commonwealth together? In a series of statements, starting with a conference of CHOGM in Singapore in 1971, the Commonwealth has adopted a long series of statements that have contained agreed principles.  Yet this wasn’t very well organised as a coherent statement. It was just a statement at the end of a conference, and therefore not so easy to find. In 2009, at Trinidad, a CHOGM meeting was held.  At that meeting, it was determined that the Secretary-General should establish an expert body for the purpose of advising on the “values of the Commonwealth”. The Secretary-General of the time, Mr Kamalesh Sharma, an Indian diplomat, agreed to establish in accordance with the resolution of 2009, the Eminent Persons Group (EPG).

I was appointed to the EPG in 2010. I was one of the ten members. The EPG included Sir Malcolm Rifkind, the past secretary of state in the United Kingdom and foreign minister of the UK.  There were other members of distinction from different Commonwealth countries. We had our first meeting in London in 2010.  This commenced in the official residence of the Secretary-General. After a very nice meal together, we sat down and there was a general conversation between participants at the table, meeting each other mostly for the first time. This is the way things develop in international law. After dinner, we repaired to a drawing room where we sat down.  The Secretary-General asked the designated chairman of the EPG, Tun Abdullah Ahmad Badawi, the former Prime Minister of Malaysia, whether he had any thoughts as to what should be done by the Group.

Tun Abdullah Ahmad Badawi, as chance would have it, had been the Prime Minister of Malaysia when the Association of South East Asian Nations (ASEAN) was established. He took an active part in formulating the organisational structure of ASEAN. That was essentially the source of his contribution. He said, “We should deliberate, and we should prepare a constitution for the Commonwealth. The United Nations has the Charter, ASEAN has its foundation document or charter.  We should establish a Charter of the Commonwealth.  It should set out its institutions; how members can be accepted or expelled; and what should be done to ensure that it was a successful organisation with a statement of how it went about its business according to the rule of law.”

There was a long silence after Tun Abdullah Ahmad Badawi suggested this. Many members at the table thought that the principal reason for the success and survival of the Commonwealth was largely its very flexible organisational structure.  And the fact that there were no detailed provisions – as are found in the Charter of the United Nations. According to this view, that was a good aspect of the Commonwealth that should be left as such. However, out of little gifts arise bigger gifts.  It soon emerged that in the EPG, we thought there should be a charter, but it should be a charter of a different kind. That idea was quickly adopted; that it would be a charter that would draw upon all the previous statements from Heads of Government conferences. This should be available as a new foundation for the Commonwealth of Nations. That was accepted by the members of the EPG. It became the source of the preparation of the Charter. In our very first meeting in London, we agreed there should be a charter. This became one of the key suggestions of the EPG’s report.

A second key suggestion of the EPG was that there should be a Commissioner of Human Rights, the Rule of Law and other principles of the Commonwealth. This person, independent of the Secretary-General, should have a responsibility to try to ensure that the Charter of the Commonwealth was turned from a statement of principle into something that would be obeyed, or at least respected and given attention by Commonwealth member states. Thereafter, at subsequent meetings of the EPG, it was decided that there would be the charter that we should propose. But it was too difficult to draft together, and we just didn’t have enough time.  We had to get out our report to the next CHOGM meeting, which had been switched from Colombo in Sri Lanka to Perth in Western Australia. We had to move with some speed. Effectively, to prepare the EPG report in time, we adopted the principle of the Charter.  But we didn’t really set to work on what such a charter would include. At the end of the second meeting, I said to my colleagues, “If we don’t decide on the broad terms of this charter of the Commonwealth, it will just go into Sir Humphry’s bottom drawer.” I have had enough experience with a number of United Nations bodies and in the OECD, and at home, to realise that if you want to get any progress in this world, you’ve got to have a piece of paper that has the main ideas on it.

V.I. Lenin, who was very clever about creating institutions and structures, once said that the enemy to action is the blank page. Therefore, we decided that we should think about what would be contained in the charter. I said, “I’m going back to Australia on a very long trip. Leave it to me.” I had to go to Colombo myself, to receive an honorary degree. On the way, on a Qantas jet, I kept calling for paper napkins, because I didn’t have any paper to prepare the draft of the charter. Qantas was very obliging and kept providing me with paper napkins.  So I remained seated and wrote out what I thought would be a good structure for the charter. I drew upon the successive statements of principle of the Heads of the Commonwealth at the CHOGM. So, it wasn’t something that just came out of my head. However, the organisation, language, poetry of the Charter came out of my head. I brought it back to Sydney where my secretary, Sarah Conquest, deciphered my handwriting. She translated it into a document, which was sent around to the members of the EPG. They were astonished by my document.  They thought it very good. But in terms of principle, they couldn’t adopt it for the purpose of it being put forward as the draft charter of the Commonwealth. This was so because it hadn’t been fully discussed. It hadn’t been the subject of consultations within the Commonwealth, which we certainly thought should happen.

The net result of all this was that the members of the EPG decided that they would annex my draft to their report, as an indication not of a draft charter, but of what the charter might look like.  The Heads of Government could then look at it and see whether they were so shocked and horrified that they wouldn’t do anything about it. In the result, the charter which I had drafted was included in the EPG Report.  It is annexed as a document. The report makes it clear that the document came from me, not from the EPG. But it shows the potential value of agreeing on a charter to replace the allegiance to the Monarch as the glue that binds the modern Commonwealth together.

Why did they put my draft in their report? They put it in their report in order to hasten progress.  And that is what happened. The EPG Report was on the table at the Perth CHOGM. I went, as did the members of the EPG who were present.  When we arrived there, we found, remarkably, that the report, although completed by us with great efficiency and hard work, was not being distributed. The question arose, what should we do about this? The secretariat said they didn’t have the authority of the members to distribute it. Sir Malcolm Rifkind was not amused.  He decided that it should be distributed. He immediately distributed his own copy to the media in Perth. Very soon after, the official copy was distributed. It was considered by the Perth CHOGM.  In the rush, they essentially agreed to most of the proposals of the EPG. They agreed to the idea that a charter should be adopted.  But what should it contain?

Most of the CHOGM leaders had little to do with the basic rights of the people of the Commonwealth. Yet the CHOGM liked the idea of a charter. To that extent, annexing a document had strategically been a good move for the EPG. The Heads of Government did not like the idea of a commissioner who might embarrass them, or criticise them, or persuade others to criticise them. Accordingly, when they adopted their resolution at the end of the CHOGM meeting, they said that there should be a charter; but there should not be a commissioner of human rights.

During the debate on that topic, the Secretary-General – although he hadn’t indicated this to the EPG – said he couldn’t see why the role could not be performed by the Secretary-General and not a commissioner. That would have financial advantages. However, the problem was that the Secretary-General is a politico. He’s a person who has to deal with politicians all the time. He is not so easily put in a position of criticising them. They are his boss.  The members of the EPG were allowed to come into the meeting of CHOGM during the discussion of our report. During that discussion, this question of whether the commissioner should be established came up. Most of the members of the conference, the Heads of Government, said, “We don’t see why the proposal for a commissioner should be adopted”. Yet there was one head of government, who was a former president (and newly restored) president of the Maldives. His name was Mohamed Nasheed.

When the other colleagues said, “We don’t need this, the Secretary-General can do this”.  Rasheed, in a booming voice, to the embarrassment of everybody, said, “Well, when I was deposed, I wrote repeatedly to the Secretary-General.  I never got a reply. Perhaps if there had been a commissioner, I would at least have had a reply. I might even have had some action.” The result of that was that the cat was put amongst the pigeons.  However, the cat was immediately disposed of. The office of the commissioner was not adopted.  The net result was that the charter went forward, but without the commissioner.

The contents of the Charter, as adopted are similar in some ways to many of the provisions in the Universal Declaration of Human Rights. That’s how all of these developments fit together in the post war period. There is a provision that says  “We are committed to the Declaration of Human Rights and to other relevant human rights”.  Most of the international instruments are committed to equality. That was an important common principle. Likewise, tolerance, respect and understanding. The EPG emphasised the need to promote tolerance, respect, understanding and moderation. We accepted that diversity and understanding the richness of our multiple identities in the people of the Commonwealth was fundamental to the Commonwealth’s principles and approach. There was much consensus on the substantive principles.  It was just the machinery of implementation that presetned a sticking point.

Throughout the document, there were many statements which spoke to those who had been the subject of disadvantage and discrimination, including in Commonwealth countries and including during times of, and after, the British Empire. The result of that was that the charter aimed to speak to those minorities. One of them was the minority who were oppressed by the laws in many Commonwealth countries against LGBT people. That oppression had very serious consequences for the response of many Commonwealth countries to the HIV/AIDS pandemic. HIV had first fallen upon that minority. This was brought home to the CHOGM.  However, it didn’t lead to a specific decision to urge countries to get rid of their laws against gay people. That was not affected directly.  Yet it was affected by the Charter. Because the Charter said “we believe in equality, “we are implacably opposed to discrimination of any kind”. Those statements began to haunt the halls of the Commonwealth.  That was a very good thing. Subsequently, in many Commonwealth meetings that have been held since 2011/2012, the action in the Commonwealth on the issue of LGBT rights has been variable but occasionally quite significant. In 2022, Antigua and Barbuda, Barbados, Saint Kitts and Nevis and Singapore. In 2023, Sri Lanka and Kenya – in respect of an agreement to permit a group to run for election to amend those laws.  The courts in several countries stepped in to require change.  Mauritius, as recently as October 2023, struck down the anti-LGBT provisions of its criminal law.  The world was waking up to this issue.  This important decision was sent to me by someone in the present audience, Ron Heinrich.  He had been president for several years of the Commonwealth Law Association. It was a very strong judicial decision.

Most important of all, in 2019, the Supreme Court of India unanimously held that the provision in the Indian Penal Code, penalising gay people, was incompatible with the principles of the Indian Constitution. Now there is a document which is designed to put the focus and the spotlight on human rights, and the right to equal dignity and non-discrimination on the table of the Commonwealth. As adopted, the Charter is not a perfect document. It is not universally respected. Uganda, as you may have heard, introduced a law in 2023 which incorporates new punishments for LGBT people, including for so called “aggravated homosexuality”. Their new law even incorporates the punishment of death. The challenge is to try to make sure that the principles of the Charter are more than mere lip service; more than just a document. Without a commissioner implementation is often not easy. But at least the principles are there. They’re increasingly referred to in Commonwealth meetings and in the writings of academics and others; and by some politicians dealing with the issue of minorities within Commonwealth countries.

Proof that change was happening was brought home to me on 13 May 2023.  On Commonwealth Day, a special service at Westminster Abbey took place. The King and the Secretary-General (by then, Baroness Scotland) came to the service. It included representatives from every Commonwealth country. There was an affirmation of the Commonwealth in terms of the Charter. It was pronounced.  Everybody, including the new Secretary General, who hadn’t always been a supporter of human rights initiatives, had to lead the service with the promise that the principles of the Charter would be adopted. The King, for the first time at a Commonwealth Day event, invited everyone to Buckingham Palace to continue the celebrations. It was good that people saw the Palace.  One realised how the Queen, throughout her life had been like a prisoner. The Palace imposes a prison-like discipline and security. But the new King had everybody there.  The security was low.  The occasion was a happy one.

We have to hope that out of a commitment to the Charter of the Commonwealth that there is going to be progress on human rights for all people. Not just LGBT people.  For many minorities. Minorities are usually on the receiving end of abuses of human rights. It is valuable to have a document containing the agreed basic values. Through the paper napkins first written on napkins on the Qantas jet, a document emerged.  It led to the Charter.

That document is a good start to a more effective commitment by the Commonwealth of Nations to universal human rights in member countries.  Some such countries, in the past, have not been particularly observant of those principles.  After the work the EPG was concluded and the Charter of the Commonwealth was adopted, I handed the paper napkins on which I wrote the first draft of the Charter to the Secretary General to keep in the archives of the Commonwealth. I don’t know what he did with them.  Yet I hope that they were put into the archives in a safe place.  I hope that one day those napkins will be seen by a PhD student who will prepare a document comparing the charter as it became and my first draft of it.

The lesson of this chronicle is that institutions, even ancient ones, like the British Empire and the Commonwealth of Nations, evolve and change.  If there is a will, new institutions will take the place of old ones.  A new adhesive may be adopted to replace allegiance to the monarch as the core principle supporting the changing association.  A Charter of values was an idea whose time had come.  But whether it will become known and provide a surer foundation for progressive action and real cohesion in the Commonwealth of Nations, remains to be seen.

No other imperial family of nations (whether the French, Russian, Portuguese or Netherlands Empires) has anything like the institutional effectiveness of the Commonwealth of Nations.  Yet, if it is to endure and flourish, it needed a statement of accepted values and principles.  Translating those values and principles into good initiatives for the people of Commonwealth remains for the future.  Adopting a draft of those values in a text was the beginning of the process of final evolution from Empire to a truly free international association.  The survival of the Commonwealth into a new century was already a miracle of sorts.  The translation of the Charter of the Commonwealth into a useful and influential document will depend on whether the Commonwealth is truly a robust, living entity or merely a transitional arrangement that its members are too nostalgic, polite or sentimental to bring to a decent conclusion.

The Commonwealth Charter was drafted optimistically; adopted speedily; and affirmed hopefully.  It now depends on the leaders and people of the Commonwealth to ensure that it is implemented energetically in an otherwise discouraging time of global disharmony.

The Hon Michael Kirby AC CMG