Commonwealth Law Conference: Altogether better

Austin Lafferty brings a Scottish viewpoint to the Cape Town delegates. Picture: Contributed

It is, of course, the evidence on the earth of the empire on which the sun was never supposed to set.

Created out of the conquering zeal of Britain, I have found that the Commonwealth, or at least the legal bit of it, is no fossil. From the sessions on media law in India, lawyers’ political protest in Malaysia, oppression against the legal profession in Zimbabwe, or the fight against female genital mutilation in Uganda, to the plenary lectures on the political interference in the selection of constitutional court judges in South Africa, to the networking with colleagues, I have found that the CLC is a vehicle for the Commonwealth Lawyers Association (CLA) to function as a watchdog to guard against the danger of governments to override civil rights.

I’m writing from Cape Town, South Africa, where the latest biennial conference has been taking place. The conference moves around the nations of the organisation, and in 2015 the host will be Glasgow (that’s Scotland, not Ontario) so amongst all the other work being done here, a massive selling and talking job is being done by the Law Society of Scotland to raise awareness and secure promises to attend Glasgow.

We will analyse the conference to give us a head start on innovations, improve on areas of less success, and ensure we provide a package attractive and relevant to the whole Commonwealth and its jurisprudence. Our CLA council member is past president Jamie Millar and, with the society team led by chief executive Lorna Jack, it will soon be all systems go.

The state-of-the-art Cape Town International Conference Centre is superb, the city itself is a wonderful resort and destination with the extremes you expect – high sophistication in the Victoria and Alfred waterfront with its restaurants, shops and leisure facilities, to the shanty towns by the roadsides outside town coming from the airport. When we landed, almost the first thing I saw in the concourse was a sign demanding that handguns be deposited.

Everywhere there is security. Housing estates have high walls around and a manned gatehouse. One night we went out to a bar, literally around the corner, and were followed by a couple of men openly asking for money (dollars as it happens, not rand). Staff in shops and restaurants are uniformly friendly, charming, informative and softly spoken.

The scenery is breathtaking. Table Mountain looms over the city, along with Lion Mountain and Signal Hill framing the area. Going up the (terrifyingly open-windowed) cable car to the top opens out a vista in all directions going for ever, the city and bay below you, and a wild landscape of rocks and vegetation, inhabited by colourful and unusual birds, and lorded over by dassies – small furry creatures, apparently distantly related to the elephant, which sleep on inaccessible rocks. Described politically, they are shirkers rather than workers, as the group lay on the same rock for the hour and a half we were up there.

Which is, I guess, something to consider. “Africa time” is a routine phrase here. And, although we found South Africans to be industrious and creative people (sculpture using old metal utensils is skilful and artistic in ways that show a unique view of the world and a practical application of unexpected material), and always able to find an answer, they avoided, deliberately or traditionally, the routine urgency we in Scotland have come to expect or perhaps are enslaved to. But my main focus has been on matters legal.

As well as the plenary sessions, my colleagues and I attended (and contributed to) many sessions on specific topics, and two things became very clear. The first is that any ideas about developing countries being unsophisticated or behind in jurisprudence are no more than misconceptions. As well as the expectedly well-developed legal systems of Australia and Canada, those speaking from or about Sri Lanka, Papua New Guinea, Nigeria, Trinidad and Tobago, effortlessly showed that law, jurisprudence, legislation and legal structures are all different but highly developed, and contributions were equal in merit and substance.

Legal-aid provision is much better appreciated and politically harmonious in many African and Asian countries than it is in England and Wales or Scotland. In fact, we had one odd session on legal aid where on the panel among lawyers from Kenya, South Africa and Malaysia, Lucy Scott-Moncrieff from the LSE was describing the situation in England, and the cuts and changes being visited on it by the government. The striking thing was that all other countries had an optimistic view of the provision of legal aid and the innovations taking place there, while Lucy told of cuts – but the figures she quoted for spending on legal aid in its many millions were a world away from the sums these other countries are dealing with, so that protestations of injustice and unfairness sounded bizarre to them and the audience.

The other main thing is that there is clearly a commonality of legal appreciation and approach throughout the Commonwealth. Laws are, of course, different and individual, but the technical language, the description of processes and the institutions – and personnel – has an equivalence that allows great overlap of experience and wisdom. This, perhaps, gets to the heart of what the CLA is all about and why it is so effective. Whether it is just the historical accident of British empire-building, the English common law – and common-law legal and court system – has been the foundation of all these national systems, and does not just allow but encourages cross-checking and even copying, where something done in Canada seems sensible to lawyers or judges in New Zealand or Uganda.

Indeed, until many Commonwealth countries withdrew, the Judicial Committee of the Privy Council (JCPC) was the ultimate appeal court for former colonies. Men sentenced to death in Jamaica could appeal to London to stave off hanging.

And for many years the decisions of courts throughout the Commonwealth and the JCPC have been published, and it has been a routine matter for lawyers seeking a precedent on some matter of law to search across the world to find a case in point and put it in front of their local judge.

I came to my first Commonwealth conference not knowing what to expect. I leave with a firm belief in the Commonwealth Lawyers Association and its will to spread knowledge, fight for the rule of law and support its members throughout the nations. It is an essential bulwark, and a brilliant example, of mutual legal aid. One act of our assembled membership delegates was to unanimously approve a decision by the CLA council to condemn and restrict Sri Lanka for oppressive removal of its chief justice from office just for doing her job.

I hope and expect Glasgow 2015 to continue to enhance this tradition.