The administration of justice

Stabroek News
April 19, 2000

Next month a one-week public inquiry will be held into the administration of justice in Trinidad and Tobago by a three man commission headed by Lord Mackay of Clashfem, a former High Chancellor of Great Britain and by common consent one of the most distinguished holders of that office. The other two commissioners are Justice Austin Amissah, President of the Court of Appeal of Botswana and Dr. L.M. Singhvi, an academic. It will recommend ways in which the justice system can be improved, look at the qualifications for the judiciary, consider a satisfactory system for complaining against the misbehaviour of judges and lawyers and investigate differences of opinion by Chief Justice Michael de la Bastide and Attorney General Ramesh Maharaj over alleged executive interference in the judiciary.

Addressing the three commissioners at the formal opening ceremony the counsel to the commission Geoffrey Robertson Q.C., a leader of the English bar well known for his appearances in a number of high profile human rights cases, said the challenge was to design a legal system for the twenty-first century which could set the standard for other Commonwealth countries. He suggested that the Commissioners' report could become a "blueprint for modern democracy". It will certainly be of interest in Guyana where reform of the system of judicial appointment and tenure of office recently occupied the attention of the Constitution Reform Committee.

The exercise has a wider significance. In a fascinating paper prepared by the Commonwealth Human Rights Initiative entitled "The Harare Declaration and the Millbrook Accord: its implementation and the way forward to a Commonwealth norm in governing" the authors argued that there is "both a moral and utilitarian purpose in ensuring that human rights becomes a Commonwealth norm in governing. If the Commonwealth is to remain relevant to the people of the Commonwealth it must adopt human rights as a normative value".

Examining the Commonwealth the paper suggests that past colonial relationships provide a fragile framework for the future. They note the advantage of a common language (though English has become the global language of communication), refer to the Westminster system of government as another commonality "exported as the ideal form of governance to newly freed colonies", though this has frequently been transformed into something that "bears little resemblance to the `mother system', therefore diminishing the similarities...". They note that there are population flows, though mainly from South to North and between the developed countries, and economic flows though in an entirely different direction. "Aid flows from the developed North to developing South whilst overall wealth flows from South to North".

"Though there is a great deal of foreign aid and commerce within the Commonwealth, the time when the Commonwealth could build on close relationships to create a powerful economic bloc based on mutual benefit has been overtaken by the development of regional blocs that offer greater protection and more immediate advantage. Economic strengths of countries within the Commonwealth are disparate and newer economic blocs have superseded the Commonwealth, are far stronger and are growing more quickly therefore diverting the economic flow which once was directed into the Commonwealth".

Despite these fissiparous tendencies, the report suggests, and the presence of alternatives "the Commonwealth validates itself in its stubborn ability to remain a live association". Asking what would be the nature of the Commonwealth "in a globalising world where the dominant motivations are to subordinate all things to the market" it suggests that the Commonwealth's unity of purpose must be articulated and demonstrated in terms of what the Commonwealth has in common, shared values. "Human rights must be the common coinage that is used in all dealings between member States; the State and the citizen; and between the people of the Commonwealth".

It is an inspiring concept. The Commonwealth re-affirmed its commitment to the protection of human rights in the Harare Declaration of l99l. Subsequently, the Millbrook Commonwealth Action Programme based on that declaration was adopted at the heads of government meeting in New Zealand in l995. Among other things it urged the strengthening of the Commonwealth Secretariat to enhance its capacity to observe elections, strengthen the rule of law and promote the independence of the judiciary. A Commonwealth Ministerial Action Group was set up to assess clear infringements by governments of the Harare Declaration and to recommend collective action.

The idea of energising the Commonwealth around the ideals of good and open government should be strongly pursued by Commonwealth Caribbean governments. To quote from the report's conclusion:

"The Commonwealth Secretariat must utilise human rights as a common dialogue when dealing with states. Only when human rights is perceived to be a non-conflict based tool for developing international relationships will member States themselves imbue their governance with human rights values. The Commonwealth Secretariat can achieve this by setting the precedent and setting human rights values as the basis on which they make their decisions and determine their policies. As part of prioritising human rights the Commonwealth Secretariat should enhance the role of (its Human Rights Unit) so that it takes pride of place and does not operate in isolation. Further, the Commonwealth Secretariat should encourage input and participation from NGOs and the average citizen of the Commonwealth".