Journal of theCommonwealth Magistrates’

andJudges’ Association

Vol 19 no. 2 December 2011

19807 CMJA DEC Cover 19-2.qxd:Proof of cover 2/12/11 10:01 Page 2

COMMONWEALTH MAGISTRATES’AND JUDGES’ASSOCIATIONEstablished in 1970

Registered Charity (LTK) No. 800367 Company Limited by Guarantee Reg. No. 1942930

PATRONHer Majesty the Queen

PRESIDENTHer Honour Mrs Justice Norma Wade Miller

EXECUTIVE VICE-PRESIDENTJudge Tim Workman

HON. TREASURERMr Paul G Norton JP

IMMEDIATE PAST PRESIDENTThe Honourable Chief Justice R.A Banda

LIFE VICE PRESIDENTSThe Hon. Magistrate David ArmatiLord Hope of Craighead, KT, PCThe Hon. Justice Kipling Douglas

Mr Michael Lambert CBEThe Hon. Judge Sandra Oxner

Mrs Clover Thompson-Gordon JP

CARIBBEAN ATLANTIC & MEDITERRANEANREGIONAL VICE PRESIDENT REGIONAL VICE PRESIDENTJustice Richard Williams (Turks and Caicos) Justice John Vertes (Canada)COUNCIL MEMBERS COUNCIL MEMBERSMrs Faith Marshall-Harris (Barbados) Sheriff Michael Fletcher (Scotland)Mrs Margaret Ramsay-Hale (Cayman Islands) Mrs Anita St John Grey (England and Wales)

EAST, CENTRAL AND SOUTHERN AFRICA PACIFICREGIONAL VICE PRESIDENT REGIONAL VICE PRESIDENTHis Hon. Bernard Luanda (Tanzania) The Hon. Robin MillhouseCOUNCIL MEMBERS COUNCIL MEMBERSMrs Arida Chulu (Zambia) Mr John Lowndes (Australia)Chief Magistrate Matankiso M Nthunya (Lesotho) Her Hon. Judge Mary Beth Sharp (New Zealand)

INDIAN OCEAN WEST AFRICAREGIONAL VICE PRESIDENT REGIONAL VICE PRESIDENTVacant The Hon. Judge Paul Evande Mwambo (Cameroon)COUNCIL MEMBERS COUNCIL MEMBERSHis Hon. Justice Markandey Katju (India) Mrs Ayodele O Odugbesan (Nigeria)Mr Nithiyanantham Murugesu KMN (Malaysia) His Hon. Judge Charles Adjei Wilson (Ghana)

CO-OPTED COUNCIL MEMBERSSheriff Douglas Allan OBE (Scotland)

His Hon. Justice Charles Mkandawire (SADC/Namibia)Mrs Olufolake Oshin (Nigeria)

Her Hon. Judge Leona Theron (South Africa)

SECRETARY GENERAL: Dr Karen Brewer EXECUTIVE ADMINISTRATOR: Temi Akinwotu

Auditors: Alliotts

EDITOR OF COMMONWEALTH JUDICIAL JOURNALProfessor David McClean

EDITORIAL BOARDDr Peter Slinn (Chairperson) Judge David PearlMrs Nicky Padfield Mr Geoffrey CareMr Akbar Khan Mr Aldo Zammit-Borda

Correspondents: Mr Christopher Rogers,His Worship Dan Ogo

CMJA, Uganda House, 58-59 Trafalgar Square, London WC2N 5DX, U-K. Tel: +44 207 976 1007Fax: +44 207 976 2394 Email: info@cmja.org website: www.cmja.org

This journal is generously funded by Tottel

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COMMONWEALTHJUDICIALJOURNAL

CONTENTS

EDITORIAL 2

John Z Vertes Why can’t we be friends? Should judges be onFacebook? 3

Matthew Thorpe The Commonwealth’s contribution to thedevelopment of international family law 10

Benjamin J Odoki Legal pluralism: the Ugandan experience 14

Philip Bailhache The implementation of the Latimer HousePrinciples 18

M L Lehohla Current threats to judicial independence 23

L J Ryan Restorative justice for children: the New Zealandexperience 27

LAW REPORTS 32

The Masters’ Association of Ontario v Her Majesty the Queen inRight of Ontario 32

Canadian Broadcasting Corporation v Canada (Attorney General) 34

Regina v Chaytor 37

BOOK REVIEWS 39

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Journal of theCommonwealth Magistrates’ andJudges’ Association

Vol 19 No 2 December 2011

This editorial is being written a few weeksafter the conclusion of the CommonwealthHeads of Government meeting in Perth. Thereis no doubt that CHOGM made progress instrengthening the structures of theCommonwealth, adopting many, but by nomeans all, of the recommendations of itsEminent Persons Group. But there must bedisappointment at the outcome of the meetingin terms of the Rule of Law.

In its Communiqué, CHOGM made the rightnoises. It urged members ‘to considerbecoming parties to all major internationalhuman rights instruments; to implement fullythe rights and freedoms set out in the UniversalDeclaration of Human Rights ... as well asthose human rights treaties to which they are aparty; to uphold these rights and freedoms;...to continue to support the work of NationalHuman Rights Institutions; and to promote‘tolerance, respect, understanding andreligious freedom which, inter alia, areessential to the development of free anddemocratic societies’. There were other specificreferences to legal co-operation, notably inrespect of people smuggling and humantrafficking and in improving gender equalityand the empowerment of women.

All these words are welcome, but it seems thatthe response of CHOGM to human rights issuesin terms of action was less than adequate. TheEminent Persons Group in their report noted thecriticism that the Commonwealth MinisterialAction Group, which is required to considerserious or persistent violations of the rule of lawand of human rights, had only shown realinterest, and responded, when there had been acoup d’état or a military seizure of power in amember state. This has led to unfavourablecomparisons with the period when theCommonwealth led the world struggle toachieve the rule of law, respect for human rights,and the end of apartheid in South Africa.

The Eminent Persons Group believed that therewas a significant gap that should be filledpromptly. The gap was twofold: first, the needfor full-time attention to be paid to determiningwhen serious or persistent violations of theCommonwealth’s political values, particularlyinfringements of human rights, may havestarted to occur; and second, the need forexploration and analysis to advise both theSecretary-General and CMAG when serious orpersistent violations persisted despite theSecretary-General’s ‘good offices’ interventions.

To fill this gap, the Group recommended thatthe office of Commonwealth Commissioner forDemocracy, the Rule of Law and Human Rightsshould be created, with responsibilities, interalia, to advise, after thorough investigation ofthe facts, when a state is violating coreCommonwealth values, particularly humanrights, in a serious or persistent way, indicatingapproaches for remedial action. In so doing theCommissioner would draw on the work andknowledge of the various Commonwealth civilsociety organisations and professional networksto establish a pan-Commonwealth system todetect human rights violations, threats toreligious freedom and other impendingdifficulties so that they can be pre-empted orquickly resolved.

In its response, CHOGM agreed to strengthen(in unspecified ways) the role of CMAG ‘inorder to enable the Group to deal with the fullrange of serious or persistent violations ofCommonwealth values’ but the proposal for aCommissioner ran into difficulties. TheSecretary-General and CMAG are ‘to furtherevaluate relevant options relating to’ theproposal and to report back to ForeignMinisters at their September 2012 meeting inNew York.

So all is not lost on the Commissionerproposal, but there is clearly a reluctance onthe part of some member states to allow theirhuman rights records to be monitored andpossibly criticised. The Financial Action TaskForce had great success in ‘naming andshaming’ states whose legislation on money-laundering was inadequate. Groups of states(the EU is another example) are much lesswilling to ‘police’ their own members. TheCommonwealth is, of course, not just a humanrights organisation, but bodies like the CMJAmust continue to stress the primary importanceof human rights and the Rule of Law.

As Sir Philip Bailhache, the CMJA’s ExecutiveVice-President, reminds us in a paper publishedin this issue, the Commonwealth (LatimerHouse) Principles, agreed by CHOGM at anearlier meeting in 2003, speak of the duties ofthe three branches of government. They are‘the guarantors, in their respective spheres, ofthe rule of law, the promotion and protectionof fundamental human rights and theentrenchment of good governance based on thehighest standards of honesty, probity andaccountability’.

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EDITORIAL

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Every guide to judicial conduct throughout thecommon law world has a canon addressingjudicial demeanour. Essentially these expressthe fundamental notion that a judge should, atall times, act in a manner that promotes publicconfidence in the integrity, independence andimpartiality of the judiciary and caution judgesto avoid impropriety or even the appearance ofimpropriety.

The Bangalore Principles of Judicial Conductof 2002 contains the following admonitions onconduct and propriety:

2.2 A judge shall ensure that his or herconduct, both in and out of court,maintains and enhances the confidence ofthe public, the legal profession and litigantsin the impartiality of the judge and of thejudiciary.

4.6 A judge, like any other citizen, is entitled tofreedom of expression, belief, associationand assembly, but in exercising such rights,a judge shall always conduct himself orherself in such a matter as to preserve thedignity of the judicial office and the impar-tiality and independence of the judiciary.

The Canadian Judicial Council’s EthicalPrinciples for Judges, published in 1998,contains the following statement on integrity:

Judges should strive to conduct themselveswith integrity so as to sustain and enhancepublic confidence in the judiciary.

To like effect, the Guide to Judicial Conduct,published by the Judges’ Council of Englandand Wales in 2004, advises as follows:

3.1 A judge should strive to ensure that his orher conduct, both in and out of court,maintains and enhances the confidence ofthe public, the legal profession andlitigants, in the impartiality or the judgeand of the judiciary.

The highest standards are expected of a judgeboth on and off the bench. As many

commentators have noted, public confidencein the judiciary is the cornerstone of judicialindependence. Thus, any conduct in or out ofcourt that demonstrates a lack of integrityposes the danger of undermining thatconfidence. The standard of behaviour to beexpected from judges was aptly described byGonthier J. when delivering the judgment ofthe Supreme Court of Canada in Re Therrien,[2001] 2 S.C.R. 3 (at paras. 110-111):

Accordingly, the personal qualities,conduct and image that a judge projectsaffect those of the judicial system as awhole and, therefore, the confidence thatthe public places in it. Maintainingconfidence on the part of the public in itsjustice system ensures its effectiveness andproper functioning. But beyond that,public confidence promotes the generalwelfare and social peace by maintainingthe rule of law...

The public will therefore demand virtuallyirreproachable conduct from anyoneperforming a judicial function. It will atleast demand that they give theappearance of that kind of conduct. Theymust be and must give the appearance ofbeing an example of impartiality,independence and integrity. What isdemanded of them is something far abovewhat is demanded of their fellow citizens.

The fact that a judge must exercise greaterrestraint and decorum than other members ofsociety is commonly accepted. The questionbecomes how far a judge must distance himselfor herself from the common activities ofsociety. This question takes on a whole newdimension with the advent of computertechnology and the Internet. Technologyprovides great benefits, but it also bringssignificant new challenges that impact judicialethics. And yet, notwithstanding itssignificance, the ramifications of technologyfor the judiciary have been little examined.

WHY CAN’T WE BE FRIENDS?SHOULD JUDGES BE ON FACEBOOK?

Justice John Z Vertes, Senior Judge, Supreme Court of the Northwest Territories, Canada.A paper from the CMJA Conference in Kuala Lumpur, July 2011.

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How does technology, and specifically socialnetworking via the Internet, affect the scopeand substance of acceptable out-of-courtbehaviour of judges? That is the subject of thispaper.

The Challenge of Social NetworkingSocial networking sites (such as Facebook,MySpace, LinkedIn, Twitter, etc.) areextremely popular. It is estimated thatFacebook is used by 450 million peopleworldwide. In Canada, 77% of Canadianshave social media accounts. MySpace has some125 million users worldwide while LinkedInclaims over 50 million. These sites are alsoused by businesses and increasingly by lawyersfor marketing and client development. A 2009survey by LexisNexis Martindale-Hubbell inthe United States revealed that 86% ofattorneys between the ages of 25 and 35, and66% of those age 46 or older, belonged to on-line social networks.

Social networking sites allow users to uploadprofiles, post comments, join ‘networks’, andadd ‘friends’. Of course, a ‘friend’ on a socialnetwork site may or may not be a friend in thetraditional sense of the word. Anyone who setsup a profile page can request to become a‘friend’ (or some similar designation) of any ofthe millions of users on the site. There could behundreds of millions of ‘friends’ on a site. A‘friend’ can become a ‘friend’ of a ‘friend’ andso on. Some ‘friends’ do not know each otherexcept for their presence on the social network.Being a ‘friend’ gives opportunity for socialinteraction on the network. A ‘friend’ caninteract with another ‘friend’ by postingupdates, by sharing photographs, by sendingmessages, or by chatting on-line. And, unlessprivacy controls are used, interaction with one‘friend’ can be viewed by all ‘friends’ in thenetwork.

These sites can be a great way to network,communicate and advertise. But they alsocarry risks.

Unlike traditional, written communicationsthat provide an opportunity for reflectionbetween the time a message is written and thetime it is sent or published, electronic commu-nication is instantaneous. The opportunitiesfor a judge to engage in spontaneous and ill-considered communications that may reflectbadly on the judiciary are thus correspond-

ingly greater. In addition, informationconveyed via the Internet is potentially acces-sible by anyone around the world, includinglitigants, lawyers, jurors, witnesses, andmembers of the public who may misappre-hend the meaning or motives behind a judge’scommunications. Maintaining the privacy ofinternet communications is far more difficultthan for traditional communications. Thisonly increases the likelihood that seeminglysecure information will become known.Information published by a single website canquickly be disseminated across the Internet,making the retraction of problematic commu-nications next to impossible.

Some of the dangers specific to socialnetworking sites were highlighted in a recentarticle from an American law journal:

This alluring new world has demonstratedmany pitfalls. Initially, very few people usedthe privacy settings that were available tothem. They simply left them at the defaultsettings, meaning that everything theyposted was wide open to anyone. And let’sface it, if your ‘friend’on Facebook choosesto cut and paste elsewhere some veryunseemly language you posted, yourprivacy settings are all for naught.Additionally, the terms of use, which mostpeople do not read, give the sites enormouspower over how your postings may be used.It is enough to give a cautious person aserious case of the willies.

Compounding the dangers, social networkshave begun to attract, in a major way, folkswho want to use them to spam, to controlnetworks, to attract Internet users to siteswhich will download malware, and even to usephotos of your family and friends to peddletheir products. Imagine the surprise of thehusband who found a photo of his wife in aFacebook ‘hot singles’ ad, with her image usedwithout her knowledge or consent. Theadvertiser had merely lifted her attractivephoto from a Facebook page.

Hackers have shown increasing interest inthese sites as well (never a good omen for sitesthat once seemed fairly innocent). By using thesites’ features that allow the downloading ofcontent from third-party sites, the networkshave left huge security holes for hackers toexploit.

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One of the big risks is, of course, privacy. Akey danger is that while one may have a fair bitof control over one’s own page, one has nocontrol over what others say or do. Forexample, someone could upload a photographof someone else and then tag it so that thename is then searchable. Recently, in Toronto,it was discovered that there was a Facebookfan page devoted to a family court judge thatthe judge had nothing to do with. Some 214‘fans’ of the judge, including one whoappeared as a litigant in the judge’s court,follow the Facebook postings that link to thejudge’s writings and media appearances. Thiswas a case where the ‘fans’ were trying to dosomething positive but there is nothing to stopan angry litigant from creating a Facebookgroup to organize negative information abouta judge.

In 2007, the respected Australia High CourtJudge Michael Kirby became the victim of amalicious identity theft when strangers set up afake MySpace site in his name that containedsordid sexual material. Undoubtedly anyonewith good sense and any knowledge of thejudge would dismiss such scandalousinformation. But such an incident reinforcesthe dangers of this type of media.

This case highlights the other obvious risk, thatbeing identity theft. A Facebook profile cancontain a virtual gold mine of personalinformation. And, as the list of features andapplications available to users of socialnetworking sites have grown, so too has thevolume of information about the users andtheir friends. Hackers have been known toattack popular Facebook applications andeven Twitter and make off with hundreds andthousands of personal documents containingcredit card information, accounts and securitycodes.

In 2009, the Privacy Commissioner of Canadaconducted an in-depth investigation intoFacebook’s privacy practices and found thatFacebook breached Canadian privacy laws in anumber of respects. There were insufficientsafeguards to prevent third parties (such asadvertisers) from getting unauthorized accessto users’ personal information; Facebook didnot ensure that users gave meaningful consentfor disclosure of their personal information;Facebook kept information from accountsdeactivated by users indefinitely; and,

Facebook allowed users to post personalinformation about non-users without consent.

In Canada, there are no guidelines for judgeson the use of social networking sites but theCanadian Judicial Council has published abulletin, authored by Martin Felsky, entitledFacebook and Social Networking Security(November, 2009). Mr. Felsky, a courttechnology expert, offers some worthwhileadvice regarding the limited protectionsoffered by Facebook:

Because Facebook makes no sense withoutsharing, there are basic bits of informationabout yourself that must be consideredpublic, and you have the limited ability tocontrol who sees what. However, thecontrols are confusing, counter-intuitiveand for many users too complicated toimplement effectively.

The Canadian Judicial Council has alsopublished a guide on the use of Skype, one ofthe voice over internet services available, alsoauthored by Mr. Felsky, entitled Is Skype Safefor Judges? (July 2010).

Judicial ConductVery little has been written to date regardingthe ethical boundaries to a judge’s use of socialnetworking sites. There have been no casesfrom the Canadian judiciary where such usehas been the subject of a conduct investigation.There are, however, numerous examples fromthe United States where several states haveissued advisory opinions.

In New York, a judge sought an advisoryopinion after receiving an invitation to join asocial network. In concluding that a judge mayjoin and make use of an internet-based socialnetwork, the opinion recognized that judgesmay have legitimate reasons for socialnetworking, such as staying in touch withfamily and colleagues, reconnecting with oldclassmates, and, more often than not,monitoring the use of the network by thejudge’s children. They warned that a judgeshould consider whether online relationships(such as with an attorney) rise to the level ofclose personal friendships requiring disclosureor recusal. The committee also cautionedjudges to employ an appropriate level ofprudence, discretion and decorum in using thistechnology, and to stay abreast of new featureson networking sites that may present

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additional issues requiring further guidance.The committee emphasized that it was properfor a judge to participate in social networkingsites only if the judge otherwise complies withthe Rules Governing Judicial Conduct.

In Florida, the ethics committee concluded thata judge may post material on the judge’s socialnetworking site if the publication of thesematerials does not otherwise violate the Codeof Judicial Conduct. The committeeconcluded, however, that a judge may notdesignate lawyers as ‘friends’ or permit alawyer to designate the judge as their ‘friend’.The committee reasoned that this practicewould ‘lend the prestige of the judicial office’to those lawyers designated as ‘friends’ andmay give the impression that they were in aspecial position to influence the judge. Therewas a strong minority dissent on the committeewho argued that social networking sites havebecome so ubiquitous that the term ‘friend’ onthese sites merely identifies a person as acontact and not a ‘friend’ in the traditionalsense.

In South Carolina, an ethics advisory opinionaddressed a magistrate’s enquiry as to thepropriety of designating several lawenforcement officers and employees of themagistrate as ‘friends’ on his Facebook site. Thecommittee concluded that the magistrate maydo so as long as they do not discuss anythingrelated to the judge’s position as magistrate. Thecommittee quoted from the South CarolinaCode of Judicial Conduct to the effect that‘complete separation of a judge from extra-judicial activities is neither possible nor wise; ajudge should not become isolated from thecommunity in which the judge lives. Allowing aMagistrate to be a member of a socialnetworking site allows the community to seehow the judge communicates and gives thecommunity a better understanding of the judge.’

In Kentucky, the ethics committee concluded,as in New York, that the mere designation of a‘friend’ on a social networking site does not, inand of itself, indicate the degree of a judge’srelationship with that person. Such terms as‘friend’, ‘fan’ and ‘follower’ were thought to beterms of art used by these sites and not used intheir ordinary sense. Thus the listing of lawyersas ‘friends’ by a judge on his or her site doesnot violate the Code of Judicial Conduct andspecifically does not convey the impression

that they are in a special position to influencethe judge. The committee cautioned, however,that, as with any public media, socialnetworking sites are fraught with peril forjudges and that its opinion should not beconstrued as explicit or implicit approval forjudges to participate in such sites in the samemanner as members of the general public.

Similarly, in Ohio, an ethics panel under thesupervision of the state Supreme Court heldthat a judge may be a ‘friend’ on a socialnetworking site even with a lawyer whoappears as counsel in a case before the judge.As with any other action a judge takes, ajudge’s participation on a social networkingsite must be done carefully in order to complywith all ethical rules in the Code of JudicialConduct. A judge should disqualify himself orherself from a proceeding when the judge’ssocial networking relationship with a lawyercreates bias or prejudice concerning the lawyeror a party. There is, in the panel’s view, no‘bright-line rule’; not all social relationships,online or otherwise, require a judge’sdisqualification. This opinion, unfortunately,did not address the questions of fairness thatare triggered when one lawyer is a ‘friend’ andthe other is not, or when a lawyer is‘defriended’ or ‘blocked’ on the judge’s onlinepage.

Disciplinary findingsThere have also been some specific disciplinaryfindings involving the inappropriate use ofsocial networking sites.

In North Carolina, a district court judge waspublicly reprimanded for making Facebookposts about a child custody case being triedbefore him. He also had ex partecommunications with counsel for one of theparties who was a Facebook ‘friend’ of thejudge. To make matters worse, the judgeconducted independent research into a party’sbusiness through the Internet and did notdisclose this to the parties or their counsel.This unfortunate episode came to a halt afterthe judge issued his ruling and the losing sidebrought a motion for a new trial and thejudge’s disqualification, both of which weregranted. The North Carolina JudicialStandards Council concluded that ‘the judge’sactions constituted conduct prejudicial to theadministration of justice that brings thejudicial office into disrepute.’

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In Georgia, a judge resigned after newspaperaccounts revealed inappropriate contactsbetween the judge and a litigant using a socialnetworking site and e-mail. Apparently thejudge made initial contact on Facebook withthe female litigant and then developed arelationship with her.

What all of these instances demonstrate is thatthe basic rules governing judicial conduct stillapply, whether one is writing a letter or postinga picture on a Facebook site. Engaging in exparte communications with counsel on oneside of a case is improper whether done with orwithout a computer. The fundamental duty toact with integrity and propriety applieswhether in cyberspace or here on earth.

GuidelinesThere can be no doubt that the proliferation ofsocial networking sites has transformedelectronic communications and socialinteractions. Judges, as human beings, and inmany cases human beings highly engaged inthe activities of their societies, are just asinclined to make use of these sites as others.But, judges do not have the same latitude intheir personal lives as others. They thereforecannot approach their use of technology in thesame manner as others.

The boundaries of acceptable out-of-courtjudicial behaviour are defined by broadgeneralizations. It is only when a judgebecomes the subject of some type ofdisciplinary or conduct review that certainpractices are identified as being beyond thelimit (such as in the American examples).There is always a tension between the duty ofjudges to act with restraint and the need to notbecome isolated from the society in which theywork.

Canada’s Ethical Principles for Judges istypical of other guidelines in remarking on theneed to maintain contact with the community(at p. 15):

Judges, of course, have private lives andshould enjoy, as much as possible, therights and freedoms of citizens generally.Moreover, an out of touch judge is lesslikely to be effective. Neither the judge’spersonal development nor the publicinterest is well served if judges are undulyisolated from the communities they serve.Legal standards frequently call for the

application of the reasonable person test.Judicial fact-finding, an important part of ajudge’s work, calls for the evaluation ofevidence in light of common sense andexperience. Therefore, judges should, to theextent consistent with their special role,remain closely in touch with the public.

This commentary, however, is closely followedby the admonishment that judges must acceptrestrictions not imposed on others:

A judge’s conduct, both in and out ofcourt, is bound to be the subject of publicscrutiny and comment. Judges musttherefore accept some restrictions on theiractivities – even activities that would notelicit adverse notice if carried out by othermembers of the community. Judges needto strike a delicate balance between therequirements of judicial office and thelegitimate demands of the judge’s personallife, development and family.

These constraints on one’s freedom of actioncan rightly be viewed as aspects of a judge’sduties that one swears to observe by acceptingthe appointment to judicial office. The duty toact with restraint and to avoid conduct thatwould undermine the dignity and image of theoffice is an aspect of the need to maintainjudicial independence and impartiality. Thiswas also explained by Gonthier J., of theSupreme Court of Canada, in Ruffo v. Conseilde la magistrature, [1995] 4 S.C.R. 267 (atpara. 107):

The duty of judges to act in a reservedmanner is a fundamental principle. It is initself an additional guarantee of judicialindependence and impartiality, and isaimed at ensuring that the public’sperception in this respect is not affected.The value of such an objective can be fullyappreciated when it is recalled that judgesare the sole impartial arbiters availablewhere the other forms of disputeresolution have failed. The respect andconfidence inspired by this impartialitytherefore naturally require that judges beshielded from tumult and controversy thatmay taint the perception of impartiality towhich their conduct must give rise.

So, bearing in mind these principles, andknowing the potential perils posed by socialnetworking sites, it is surprising that most

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jurisdictions have not adopted at least someexplicit guidelines for judges’ activities onthese sites. It is fair to say that prohibitingjudges from participating on social networkingsites at all would be a far-reaching intrusioninto their private lives. But, surely someguidelines would be warranted for those judgeswho may be unsure or unaware of exactlywhat they can do and what should be avoided.

The Ohio guidelinesOne of the few jurisdictions where guidelineshave been issued is Ohio where the Board ofCommissioners on Grievances and Discipline,under the supervision of the Supreme Court ofOhio, issued specific advice on the use of socialnetworking sites as part of the opinionmentioned earlier. The guidelines start with thegeneral advice that ‘as with any other action ajudge takes, a judge’s participation on a socialnetworking site must be done carefully’, andthat following the guidelines ‘will require ajudge’s constant vigil’.

The Ohio guidelines, while not pretending tobe exhaustive, contain the following points:

1. A judge must maintain dignity in everycomment, photograph, and otherinformation shared on the social network.Displaying anything that is contrary to thedignity of the office would be imprudentand improper.

2. A judge must not foster social networkinginteractions with individuals ororganizations if such communications willerode confidence in the independence ofjudicial decision-making. A judge must notconvey the impression that any person ororganization is in a position to influence thejudge and, just as important, must notpermit others to convey that impression.For example, frequent and specific socialnetworking communications with advocacygroups interested in matters before thecourt may convey such an impression.

3. A judge should not make comments on asocial networking site about any matterspending before a judge, not to a party, notto counsel, not to anyone. Most rules orguides to judicial conduct warn that ajudge must avoid initiating, receiving,permitting or considering ex parte commu-nications. Even if, when circumstancesrequire, ex parte communications aresimply for administrative purposes and do

not deal with substantive issues in the case,it would be prudent to avoid any such case-related communications on a socialnetworking site since it creates the possi-bility of improper ex parte exchanges. If ajudge receives an ex parte communication,the judge should reveal it on the record tothe parties and their counsel.

4. A judge should avoid making comments ona social networking site about any matterin any court. Judges are admonished toavoid comment about cases that might beconstrued as affecting the outcome orimpair the fairness of the hearing of aparticular case. In other words, it is not theprovince of a judge to comment on thework of another judge (that’s the exclusivedomain of appellate courts).

5. A judge should not view a party’s orwitness’ page on a social networking siteand should not use social networking sitesto obtain information regarding the casebefore the judge. This is a corollary to therule that a judge should not conductindependent investigations into the facts ofa case. The ease of finding information ona social networking site should not enticethe judge into investigative activities, orinto merely indulging idle curiosity,respecting cases before the judge.

6. A judge should recuse himself or herselffrom a proceeding when the judge’s socialnetworking relationship with a lawyercreates bias or prejudice, or the appearanceof bias, in the case. While the existence ofa friendship or social relationship with alawyer is not necessarily a disqualifyingfactor, it is always a matter of perception.This is no different than the rule alreadycontained in many ethical canons. It is justa new technological variation on it. Forexample, the Canadian Judicial Council’sEthical Principles document contains thefollowing guideline (at p. 52):

With respect to friends or relatives whoare lawyers, the general rule relating toconflicts of interest applies, i.e., that thejudge should not sit where a reasonable,fair mined and informed person wouldhave a reasoned suspicion that the judgewould not be impartial.

7. A judge must not give legal advice to otherson a social networking site. The wisdom ofthis should be self-evident.

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8. A judge should be aware of the contents ofhis or her personal social networking page,be familiar with the site’s policies andprivacy protocols, and be prudent in allinteractions on the site.

While there is room for legitimate argumentover the articulation of some of theseguidelines — in particular the question of thepropriety of judges ‘friending’ lawyers — theycan at least provide helpful guidance in thissensitive area. Technology certainly gives usmany challenges but it also offers manybenefits. Social networking appears to be hereto stay so the judiciary should realisticallyassess the risks it poses and deal with them inlight of established rules of conduct.

There is no reason to invent a new set ofethical rules to address the issues raised by thisnew technology. It is a matter of recognizinghow our established and well-accepted rulesapply to this area. As stated by ProfessorKaren Eltis of the University of Ottawa in arecent paper on the impact of technology:

The Internet age, with its promise andhurdles, cannot bypass the judiciary, and

reflection must ensue to ensure that thebenefits of technology are harnessedtowards the better administration ofjustice rather than subverted forundermining public confidence or furthercurtailing necessary judicial activities.

Although advances in science and technology do,without question, at times cry out for revisitingoutdated constructs, too often has it becomealmost instinctual to seek out ‘new and improved’standards, whereas reverting to existing frame-works — informed but not necessarily transformed— by technological change and enlightened bycomparative inquiry is more apropos.

To revert back to the question posed at thebeginning of this paper — how does this newtechnology affect the scope and substance ofacceptable behaviour of judges — the answerwould be that it is really up to the judge, beingaware that there are few protections for one’son-line activities, to exercise that sense ofrestraint and decorum that should be the hallmark of all of a judge’s actions, whether in thevirtual world or the real one.

The views expressed in the Journal are not necessarily the views of the Editorial Board orthe CMJA but reflect the views of individual contributors.

CALL FOR CONTRIBUTIONSHave you dealt with an issue/ a case which other members of the CMJA might find ofinterest?

Have you ever thought of writing a piece for the Journal on a topic close to your heart?

Have you spoken at a seminar/meeting recently and would like to share your presentationswith others in the CMJA?

Why not send us an article? The Editorial Board is seeking articles on issues affectingjudicial officers across the Commonwealth.

Contributions, ideally no more that 6,000 words should be sent to the Editor c/o the CMJA,Uganda House, 58-59 Trafalgar Square, London WC2N 5DX or by email: info@cmja.org.

LETTERS TO THE EDITORHave you an opinion about the articles we are publishing? Why not send us your feedbackin the form of a letter to the Editor?

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First we must establish what is internationalfamily law and who makes it. I consider onlyglobal and not regional law makers. The net ofthe Commonwealth jurisdiction is far flung,reflecting its origin in what was once, andbriefly, an empire. Only three of the fifty-fourCommonwealth Member States are in Europe,where the European Union is an ambitious lawmaker. The primary creator of globalinternational family law is the HagueConference. For over a hundred years theHague Conference has fashioned Conventionswhich seek to ease problematic areas of privateinternational law. The cornerstone of theHague Conference’s construction on the fieldof international family law is the 1980Abduction Convention. It was the product ofinjustice and despair created by cross borderparental child abduction, which in turn wasthe product of the new-found mobility, and theresulting mixed marriages, which had itsbeginnings with the troop movements ofWorld War II.

When the Hague Conference creates aConvention it offers a treaty which States maywish to ratify, thus creating rights, remediesand responsibilities inter se. The HagueConference is the mid-wife who assistsnegotiating Member States to bring aConvention into the world of privateinternational law. Whether it will thereafterthrive by subsequent ratifications isunpredictable. If it does not then the creativework of the Conference and the negotiatingStates will have been labour in vain. Happilyno Convention has proved more successfulthan the 1980 Abduction Convention. Noweighty-five jurisdictions have ratified and areoperating the Convention. This multitudereflects a decade of steady growth and there isgreat potential for further growth in the decadeahead amidst the hundred plus states whichhave yet to ratify. By way of instance there is astrong possibility that the Japanese ratificationwill be achieved before the end of this year.

The importance of the Hague communityNow why should we as judges regard theexpansion of the Hague community of nationsas an achievement for humanity, and itscontinuing expansion as a high priority? Surelyit is because as jurists we all believe that wherethere is a wrong there should be a remedy.Imagine that you have met at university ayoung man from another nation, let’s call itRuritania. You have married in love and thenfifteen years down the line the relationshipfounders. You have the care of the twochildren, he sees them every weekend, hereturns the children home on Sunday evening.One Sunday evening he does not come, thechildren do not come. You live through forty-eight hours when you know not where theyare. You then receive an email telling you thatthey have gone to Ruritania.

If Ruritania is a Member State operating theConvention you have only to activate the legalprocesses at the end of which lies the remedy ofa return order.

If Ruritania is not a Member State then as amother you are facing the real possibility thatyou will not see your children again duringtheir minority or until they elect to contactyou. That is an horrific scene and that is whythe expansion of this Convention is so vitallyimportant.

A Commonwealth responseSo what can we as Commonwealth Judges doto shrink those regions where there is noremedy for the left behind parent? Let me startwith the declared policy of theCommonwealth. At the meeting of lawministers in Harare in 1986 the policy wasagreed in the following terms:

Ministers were concerned that interna-tional child abductions by a parent wereincreasing. They reaffirmed a belief thatthe Hague Convention offers an effectiveinternational mechanism for ensuring the

THE COMMONWEALTH’S CONTRIBUTION TO THEDEVELOPMENT OF INTERNATIONAL FAMILY LAW

The Rt. Hon. Lord Justice Thorpe, Head of International Family Justice, England and Wales.A paper from the CMJA Conference, July 2011.

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return of the child abducted in violation ofcustody rights and that this should serve asthe basis for expanding Commonwealthco-operation in this area.

Now let us consider statistics, which hardlyseem to substantiate that stated policy. It issurprising that only sixteen of theCommonwealth jurisdictions have so farratified the Convention. After all we all applycommon law principles either wholly orpartially within our jurisdictions. Why shouldwe not reverse the ratio: thirty-eight in andsixteen out seems more plausible to me thansixteen in and thirty-eight out. From wherewould the growth come? Of the fifty-threeAfrican jurisdictions only five are party to the1980 Convention, if Mauritius and theSeychelles are excluded. Of those fifty-threejurisdictions sixteen, again excludingMauritius, are Commonwealth jurisdictions. IfZimbabwe has ratified why not, for example,Ghana, Nigeria, Zambia, Kenya, Uganda andTanzania?

Within the Caribbean the Bahamas are in, as isTrinidad & Tobago. Why not Jamaica,Barbados and Guyana? In addition to havingrelationships between themselves these Stateshave relations with their English speakingneighbours from North America and then theUnited Kingdom.

There are many potential additions in the AsiaPacific region, although relevant factors suchas location and population might render someratifications largely symbolic.

In South East Asia, India’s possible ratificationis a matter of record. In December 2006 theGovernment announced its intention to ratifyand in due course a draft bill was circulated.Despite the recommendation and endorsementof the Indian Law Commission in 2008 thenecessary legislative Act to bring theConvention within India’s domestic law hasfaltered. Might India’s ratification encourageother jurisdictions of the sub-continent tofollow?

What judges can doOf course the decision to ratify is for theexecutive, the Government in power, and notthe judiciary. It is a policy decision that mustreflect the traditions and the aspirations of theState. It must also balance the resourceimplications, such as the cost of setting up and

operating the effective Central Authoritymandated by the Convention. It must evaluatethe capacity of judicial and other authorities toachieve the standards necessary to deliver theConvention’s objectives.

However Commonwealth judges can influenceCommonwealth law ministers by emphasisingthe need for a legal remedy to right the wrongof abduction. Last week I took the opportunityoffered me by the Commonwealth Secretariatto address the triennial meeting of theCommonwealth Law Ministers in Sydney. Mypresentation was supported by interventionsfrom South Africa, Trinidad & Tobago and theUnited Kingdom. That support was valuable tome in that it came from diverse jurisdictions -a European jurisdiction with great experienceand expertise in the practical operation of theConvention, an African jurisdiction whosecontribution is crucial and a much smallerjurisdiction of the Caribbean.

I urged not only ratification of the 1980Convention but also the 1996 Child ProtectionConvention, which is on the threshold of wideadoption.

Judicial networkBesides the Conventions themselves, theCommonwealth judiciary do have animportant opportunity to support thedevelopment of a more effective internationalfamily justice system. In our Common Lawtradition judicial deployment is for thejudiciary and not for the executive. Thus ChiefJustices of our Commonwealth jurisdictionshave the power to appoint a judge to theInternational Hague Judicial Network.

The Network was one of the innovationsagreed at the De Ruwenberg Global JudicialConference in 1998. It is the structure withinwhich judicial activism has flourished. JudicialActivism requires direct judicialcommunication and collaboration in crossborder cases. The Network judge in eachjurisdiction facilitates and encourages thecollaboration. This judicial initiative wasapproved and adopted by the 4th SpecialCommission in The Hague in 2002. At the 5th

Special Commission in 2006 Member Statesagreed that an Expert Group should compile aGood Practice Manual to guide judges in theprocess. At the first stage of the 6th SpecialCommission last month the Guide submitted

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by the Experts was approved for publication. Iwould also emphasise two of the Resolutionswhich emerged from that session of the SpecialCommission.

Resolution 66: the Special Commissionemphasises the importance of directjudicial communication in internationaltrial protection and international childabduction cases.

Resolution 64: the Special Commissionwelcomes the extraordinary growth in theInternational Hague Network of Judges,Member States who have not yet desig-nated Hague Network judges are stronglyencouraged to do so.

That is the will of the international community.

Now here is another paradox. It is a fewCommonwealth judges that have led the wayin promoting judicial activism and the growthof the Hague Judicial Network. Yet whilstthere are seventy judges in the Networkrepresenting forty-five jurisdictions only sevenCommonwealth jurisdictions have officiallyappointed a sitting judge to the Network.There are therefore nine Commonwealthjurisdictions that have signed the Conventionbut have yet to nominate a Network judge. Iam convinced this is not a matter of oppositionbut of priority. The large responsibilities whichChief Justices bear preclude awareness of sucha specialist development. I hope that this paperwill alert them to the need to nominate.Furthermore nomination is not confined toStates that have already ratified theConvention. Both Pakistan and Egypt havenominated Network judges and mycollaboration with Mr Justice Jillani inIslamabad has been particularly fruitful incontributing to the resolution of very difficultAnglo/Pakistani cases.

We are assembled in this wonderful country ofMalaysia which also fosters side by side thetraditions of the common law and of Islamiclaw. I must therefore not conclude withoutpaying tribute to the efforts of The HagueConference to develop understanding and co-operation between Islamic and non-Islamicjurisdictions. The programme that it hasdeveloped is known as the Malta Process, sinceall three of the Judicial Congresses have beengenerously hosted by the Government andJudiciary of Malta. This is symbolic given

Malta’s central place in the Mediterranean andthe great part that Islam has played in Malta’shistory. Chief Justice De Gaetano contributedto these conferences and it is good to see hereChief Justice Camillieri, his successor.

ConclusionFirst, I dedicate this paper to the Chief Justicesof the Commonwealth appealing to them toencourage their Governments to ratify theInternational Family Law Hague Conventionsof 1980, 1993, 1996 and 2007.

Second, I appeal to them to nominate officiallya sitting judge to the International HagueJudicial Network.

Third, I would ask them to support the workof the Hague Conference to developcollaboration between Islamic and non Islamicjurisdictions.

Fourth, I would encourage them to send ajudge to the second stage of the 6th SpecialCommission which will commence on 24January 2012.

Finally, I would draw their attention to what Ibelieve to be an important innovation whichwe have made in London: that is to create aStanding Conference of specialist family judgeswithin the Commonwealth and common lawworlds to meet every three years to discuss thedevelopment and the operation ofinternational family law.

The first Conference was held in Windsor in2009 and some of today’s audience were there.The next will take place in Hong Kongcommencing 28 August 2012. Again I wouldencourage Chief Justices to ensure that a judgefrom their jurisdiction attends and contributesto the work of the Commonwealth/CommonLaw Standing Conference.

It is a rare opportunity for me to speak soplainly to such a relevant audience as aconference of the Commonwealth Magistratesand Judges Association. I am a relatively newmember of the Association but I have thegreatest admiration for the work that it isdoing and I believe passionately that thedevelopment of international family law thatwill be fit for future purpose is a hugeopportunity, and perhaps a huge responsibility,for the common law jurisdictions of the world.If you think of the fifty-four jurisdictions of theCommonwealth, if you add in the fourteen

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United Kingdom overseas territories, if youadd in the three crown territories of the UnitedKingdom, if you add in the common lawjurisdictions that are no longer members of theCommonwealth (there the great pillar is theUnited States of America but you have also toadd the Republic of Ireland, Israel and HongKong), you are approaching eightyjurisdictions or roughly half the number ofjurisdictions in the world. We have theopportunity to build on our commontraditions, including our recognition of thevital importance of judicial independence,integrity and the rule of law. At the same timewe might build from our diversity, because weare not a regional group like the states of

Europe or states of South America. We trulyencircle the globe and within our midst are allfaiths and customs. It seems to me that interms of international family law we see asleeping giant which must be awakened toensure the creation of ever clearer measures,not of national law which serves only thosewithin the boundaries of the State, but ofinternational law that is applicable withindomestic courts throughout the world. Thatmust be our goal and we can achieve it. Lookback to see how much has been achieved in thetwenty-five years since the 1980 Conventioncame into effective force in the mid 1980’s. Solet us take the next twenty-five years as achallenge to achieve as much or even more.

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Legal pluralism is the existence of multiplelegal systems within one geographic area. It iswhen in a social field, more than one source of‘law’, more than one ‘legal order’, isobservable that the social order of that fieldcan be said to exhibit legal pluralism. It isparticularly prevalent in former colonies wherethe law of a former colonial authority mayexist alongside more traditional legal systems.Although it is by no means only found informer colonies as former colonial powers alsograpple with similar issues especially in light ofbig migrations whose cultures and values haveto be accommodated and reflected in a nation’slegal system.

In Uganda, as a former British colony, theEnglish legal system and laws are predominantand its legal system is therefore mainly basedon the English common law system. The lawsapplied by the Courts include written law, theCommon Law and doctrines of equity. It isalso based on the African customary law asstipulated in the Judicature Act. Thecustomary laws applicable are derived fromthe mores, values and traditions of indigenousethnic groups. Within legal pluralism, it istherefore inevitable that there will becompeting claims of authority between thevarious norms and legal systems. Uganda hastried to remove this uncertainty by declaringthat these ‘customary laws’ are only applicablein so far as they are not repugnant to naturaljustice, equity and good conscience and are notin conflict with any written law or theConstitution. Uganda’s legal system has had totake into account the many different tribes,religions and cultures that exist within itsborders and hence develop a legal system thatis respectful of this diversity. The quintessentialunderpinning of legal pluralism is diversity,and this is reflected in Uganda’s legal systemthat takes cognisance, not only of customaryand common law, but also reflects Hindu andMuslim beliefs especially in the fields ofpersonal law including marriage, divorce, andsuccession. Thus, there are laws dealing with

civil marriages, Christian marriages, marriageby Hindus and marriage by Muslims. Thereare also laws governing customary marriages.

This paper discusses the concept of legalpluralism with particular reference to theUganda Legal System. It identifies and discusseskey issues relating to the clash of competinginterests, values and norms, the need to developrules for choosing between the variouscompeting interests and norms, the question ofopting out of one legal regime, the issue ofinternal conflict of laws and the choice of lawand the effectiveness of customary and religiousCourts in delivering justice.

Customary Law courtsPrior to Uganda’s independence, the Britishrecognized the traditional Kingdoms and chiefsand allowed them to exercise judicial power intheir courts under the dual system of courts.Under the dual system of courts there wereAfrican Courts for natives administeringcustomary law and Subordinate Courts fornon-Africans administering general or Englishlaw. However, the two systems were integratedinto one legal system in 1962 followingUganda’s independence. This meant there wasone system of courts for all persons in Ugandaand that customary law was administered bygeneral courts. In 1986, when the NationalResistance Movement (NRM) took powerafter an armed struggle against thegovernment, it set up the ResistanceCommittee Councils and Courts at the village,parish, and sub-county levels. These courtswere later renamed Local Council Courts(LCCs). LCCs were set up to provide‘grassroots’ justice as part of the struggleagainst a government that was seen asoppressive. They were an attempt to de-formalize or ‘popularize’ the administration ofjustice and were hailed as both an attempt tobring justice closer to the people and to ‘re-connect people to their customary traditions.’

Today in matters of customary law, people canchoose to take their civil matters to the

LEGAL PLURALISM: THE UGANDAN EXPERIENCE

The Hon Justice Benjamin J Odoki, Chief Justice of Uganda. An edited version of a paper givenat the CMJA conference in Kuala Lumpur, July 2011.

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customary tribunal or to the formal courtsystem, as both LCCs and the magistrates’courts have unlimited first instance jurisdictionin matters of customary law. The LC courtshave jurisdiction to hear among other things,land matters relating to customary tenure,disputes involving children and other familymatters. Their jurisdiction is limited only tocivil cases. This has led to an intertwiningbetween the customary and formal system thathas made it virtually impossible to distinguishbetween the two. Although in practice, poorpeople are more likely use customary tribunals,as they are unable to afford to take theirmatters to the formal judiciary.

Since the written law including theConstitution, is still the paramount body oflaw, the LCCs can only apply the customarylaw in so far as it does not conflict with thewritten law. This has led to several conflictsespecially in regard to the status of women ascertain provisions within some written lawsare viewed as being contrary to customarylaws and norms. But the Constitution ordainsthat any custom which is inconsistent with theConstitution is void.

The LCCs have been successful for severalreasons. Their inexpensive nature makes thema more realistic option for the generally lesseconomically able people who use them themost. Their geographic proximity, thesimplicity and familiarity of the language used,speed with which cases are dealt with, theirrelevance due to the fact that they are more intune with the realities on the ground asopposed to written law which is sometimesarchaic. Another important element is that ofrestorative justice since fines andcompensation will go to the aggrieved partyunlike those imposed in a formal court wherethey go to the state. It should be noted thatcustomary law is also enforced in ordinarycourts, particularly Magistrates’ Courts,especially in personal matters and land. Buttheir formal nature means that the process isslow, expensive and not easily accessible.

IssuesOne of the unavoidable elements of legalpluralism is that if the underlying norms andprocesses of the sources are inconsistent, therewill be a clash. In Uganda, attempts to pass theDomestic Relations Bill highlighted a clashbetween state and religious law that led to an

extensive dialogue with various parties in anattempt to resolve it. This legislation was seenby many groups as an opportunity to providewomen with some meaningful protection, butit raised the issue of which law should haveprimacy and overall authority. The most vocalopposition stemmed from the Muslimcommunity that took issue with the Bill’sprovision on polygamy. According to theproposal, a husband would have to seek thepermission of his first wife before takinganother. There were protests from Muslims inthe country who saw this as an ‘attempt to re-write the Koran’. The proposed law also, onthe issue of inheritance, stipulated that awoman should be given a fair share of herhusband’s wealth. The Muslim communityalso rejected this, noting that the Koranstipulates what women may inherit if theirhusband dies.

It also presented an example of a clash withincompeting versions of each type of normativeordering which is common around the worldin that the Constitution allows for the freedomto practise one’s religion but it still placesrestrictions on how one can practise theirreligion which sometimes conflicts with theprinciples of the religion.

Legal pluralism also raises the issue of whoseinterests are then put forward as authority overothers. This is particularly important whenexploring how much influence vulnerable andminority groups have over the laws that arepresented. An example is the issue of women’srights. The proposed Domestic Relations Billhad been presented as an opportunity to offersome concrete protection to women againstdomestic violence but when it came againststrong opposition, it was shelved to avoid thisclash with sectors that had opposing ideas.

There is also the issue of dealing with internalconflict of laws and devising choice of lawrules. The rules of choice of law in privateinternational law may not necessarily beapplicable.

Effectiveness of the courtsAs previously noted, customary courts havebeen effective in bringing justice closer to thepeople in a less formal setting. While they havemany advantages, they also have someweaknesses that prevent them from operatingin a more effective manner. First of all, as the

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LCCs are part of the executive branch andofficers often sit on the tribunals whilesimultaneously holding executive localgovernment positions, it creates a real risk ofpolitical manipulation and at the very least thelack of perception of impartiality. Thiscombined with a lack of sufficient training,resources and supervision creates a situationwhere justice may be compromised. Anothermore worrying aspect is the lack of uniformityin the application of the law. Often the conceptof ‘customary law’ as interpreted by the courtsreflects the public opinion of the areasconcerned and sometimes it merely reflects theopinion of the more vocal and politically activesection of the community. It makes theadministration of the law more difficult andharder to ensure it is being practised in amanner that is not ‘repugnant to naturaljustice, equity and good conscience.’ in thewords of the Judicature Act. Moreover,codification of customary law has not beenpromoted and therefore, there is always theneed to prove a custom once challenged. Somehave argued that customary law should beallowed to die a natural death.

There is no doubt that there still is and willalways be tension between the various legalregimes operating within Uganda. One of themain reasons is that while the legal systemwhich is mainly based on common law, whichhas its origins in England, is sometimes veryremoved from the lives of the ordinary citizen,their lives are more likely to be primarilyguided by their religion and local customs.While defining Sharia law, Justice Umar FarukAbdullahi explains that Sharia can meandifferent things depending on how you look atit. ‘One concept is that, for a Moslem, Sharialaw is generally regarded as a way of life;which means it covers the whole spectrum of aMoslem’s life from cradle to grave. The otherconcept is that Sharia law is such volume oflegal norms that governs the life of a Moslemin his dealing with other people, be theyMoslems or non-Moslem, as well as the State.’It means that though the Constitution statesthat any law that contradicts it is void, if aMoslem believes a certain right has beendeclared as ‘law’ by the Quran, they will inmost cases adhere to the Islamic law ratherthan the Constitution, thus giving it priorityover the Constitution. One way in which thisissue could be solved would be the

implementation of Qadhis courts which wouldhave the power and legitimacy (conferred bythe Constitution and Moslem population) todecide on issues of Muslim personal law. TheUgandan Constitution allows for theestablishment of Qadhis courts by Parliament(Art 129) but this has never been implemented.

Does Legal Pluralism Allow for OptingOut?One of the principles of legal pluralism thathas been stated as providing adequateprotection and accommodation of citizensrights is the option to ‘opt-out’ of one legalsystem for another. In reality, it is a lot morecomplicated. The Marriage Acts are theclearest examples that highlight the existenceof a pluralistic legal system in Uganda. Theyrecognise five types of marriage: civil,Christian, Hindu, Muslim and customarymarriages. While the civil and customarymarriages are open to all, the religiousmarriages necessitate that the couple bepersons who profess the religion. It thus meansthat in reality one cannot ‘opt-out’ withouthaving to renounce their religion. Before thatcan happen, there are many social and legalbarriers to overcome that make it virtuallyimpossible.

In Kenya in 1986-7, this issue played out in thecourts in the S.M Otieno case. S.M Otieno wasa leading criminal defence attorney from theLuo tribe, who died without specifying howand where he was to be buried. His wife hadbegun making funeral arrangements for hisburial in Karen, a suburb of Nairobi where helived, when members of his clan intervenedclaiming they had the right under Luocustomary law, to bury him in his birthplacewhich is his real ‘home’. The dispute waslitigated in three different courts. First, hiswidow, Wambui Otieno, obtained an order exparte entitling her to bury the body in Karen.Mr Justice Shields reaffirmed his order denyingthat the clan had locus standi. His main reasonwas that the deceased was a metropolitan andcosmopolitan lawyer who had evolved oropted out of Luo customary law. The advocatefor the clan appealed to the Court of Appeal,who quashed the order and referred the matterback to the High Court. After a trial lastingsixteen days, involving complex issues of bothfact and law, Mr Justice Bosire found in favourof the clan on the basis that the deceased

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intended to be buried in his ancestral ‘home’.After a further three months, Court of Appealfound for the clan and dismissed the appeal bya 2-1 majority. This case highlighted thecomplexity inherent in diverse communities.This case highlighted the clashes of interest andvalues not only between customary and

‘colonial’ law but also between rural andurban values, gender equality, patriarchy,individualism and communitarianism,tradition and modernization, and betweendifferent tribes.

one world one viewa unique book of 124 photographs of peopleleading their day-to-day lives in 30 countriestaken by CMJA member HHJ Nic Madge

for the

African Children’s Educational Trusta charity supporting vulnerable African children through

education is available fromwww.a-cet.org .uk

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It is an honour for me to address this gatheringof colleagues and friends on a subject which isa hardy perennial amongst topics fordiscussion at CMJA conferences. It is a hardyperennial because there is probably no othertopic that goes to the heart of Commonwealthprinciples in quite the same way. I appreciatethat delegates, who are themselves hardyperennials, will know the history of LatimerHouse but for those of you who have notattended a CMJA conference before it is worthspending just a few minutes clearing the fog onthe origins of the Principles.

Some historyIt was in June 1998 that a group of 60 invitedrepresentatives of four Commonwealthorganisations, the Commonwealth Lawyers’Association, the Commonwealth LegalEducation Association, the CommonwealthParliamentary Association, and the CMJAgathered at Latimer House inBuckinghamshire in order to draft someguidelines on best practice in relations betweenthe three branches of government, thelegislature, the executive and the judiciary. Iwas one of the representatives of the CPA as Ithen held the office of Bailiff of Jersey and was,I think, regarded as a constitutional curiosityin that the Bailiff straddles two branches ofgovernment, the legislature (of which he is theSpeaker) and the judiciary (where he is theChief Justice). There is a long history to that,but it is not relevant this morning. The broadpurpose of the colloquium was to forge someguidelines so that there would be a benchmarkof principles that could be invoked byparliamentarians, lawyers, judges, magistratesand members of civil society in the event of anybreach of those principles. After five days ofintense discussions a document emerged whichbecame known as the Latimer HouseGuidelines on parliamentary Supremacy andJudicial Independence.

Those Guidelines were later approved by thefour Commonwealth associations andsubmitted to Commonwealth Law Ministers.In that forum the Guidelines were subject tofurther intense scrutiny and amendment beforethey were considered and adopted under thename of the Commonwealth (Latimer House)Principles by the Commonwealth Heads ofGovernment in Abuja in 2003. The Principlesare expressed to have this objective –

to provide, in accordance with the lawsand customs of each Commonwealthcountry, an effective framework for theimplementation by governments,parliaments and judiciaries of theCommonwealth’s fundamental values.

Some key PrinciplesThe Principles contain some fine words aboutthe duties of the three branches of government;they are

the guarantors, in their respective spheres,of the rule of law, the promotion andprotection of fundamental human rightsand the entrenchment of good governancebased on the highest standards of honesty,probity and accountability.

And, from the perspective of judges andmagistrates, there is this important paragraphon the Independence of the Judiciary –

An independent, impartial, honest andcompetent judiciary is integral toupholding the rule of law, engenderingpublic confidence and dispensing justice.

The Commonwealth is of course very good atpromoting high sounding declarations ofprinciple. If all the countries of theCommonwealth practised what is preached inthe Harare Principles, or indeed the LatimerHouse Principles, the world would be a muchbetter place. But most people, most magistratesand judges, and indeed most governmentsoperate at a lower level, where practical

THE IMPLEMENTATION OF LATIMER HOUSEPRINCIPLES

Sir Philip Bailhache, Executive Vice-President, CMJA. An edited version of an address given atthe CMJA conference in Kuala Lumpur, 2011.

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problems tend to make the rhetoric ofinternational agreements and universaldeclarations appear remote, and evenirrelevant.

The Latimer House Guidelines thrashed out on1998 were intended to provide basic guidelinesthat could more easily be related to problemsarising in practice in the relationships betweenparliaments, governments, and the judiciary.

For the individual it is what happens on theground that matters. It does not help theindividual citizen in dispute with hisgovernment, or one of its agencies, that thegovernment in question is a signatory to adeclaration of high sounding principles. Whatmatters to him is whether the judge ormagistrate is impartial, free of political orimproper influences, and competent. Whatmatters on the ground is whether the courtoperates with reasonable efficiency so thateveryone who should be there is there at theappointed hour. What matters is whether thereis confidence that the magistrate or judge hasnot taken a bribe; what matters to themagistrate is whether he or she has been paid;whether the rates of pay and workingconditions are reasonable and appropriate tothe magistracy; and whether there isappropriate security for magistrates and judgesso that they feel safe, and whether there isrespect for the system. What ultimately mattersis whether the government and/or the militaryin fact obey the orders of judges andmagistrates.

The Latimer House Principles lay down somesimple rules against which countries can testtheir own constitutions and working practices.In Edinburgh in 2008 a group of judges,lawyers and parliamentarians tried to gofurther and to lay down some agreed actionswhich could be taken to bring the LatimerHouse Principles down to the level of practicalimplementation. In Edinburgh I was present asa representative of the CMJA. The EdinburghPlan follows the important African initiativetaken at Nairobi in 2005 when the Plan ofAction for Africa was drawn up. The generalmovement is towards looking at practical stepsthat can be taken, and for which individualmagistrates can press.

The Principles do not purport to provide asolution to every problem arising betweenjudges and the executive. But they are a

building block, and every judge and magistrateshould have a copy of this small bookletpublished by the Commonwealth Secretariatand the 4 Commonwealth associations. Ofcourse the relevance of the Principles will bemore marked in some parts of theCommonwealth than in others; and in somecountries the Principles, or parts of thePrinciples will be of greater relevance to ChiefJustices than to judges and magistrates goingabout their daily work. But all judges needsometimes to reflect upon the basics.

Impartiality and independenceFor example, we all like to think that we areimpartial judges. But every judge has his or herprejudices. We are all the product of oureducation, upbringing and training. Ourexperiences of life have shaped the way wethink and react to different situations. It is inmy view futile to pretend that judges do nothave predispositions and prejudices. No judgeis a colourless empty vessel waiting to beinfluenced by what he or she hears in court.Indeed sometimes our experiences make usbetter able to appreciate the situations inrelation to which we are called upon to judge.The key to impartiality in the judgment seat isto recognize what prejudices we might have,and to be prepared to put them aside and toallow one’s judgment to be shaped by thearguments that we hear. In particular it isimportant not to allow oneself to form anunchangeable view on reading the papers.Sometimes the papers are misleading. I cannotcount the number of times I have gone intocourt feeling that a particular outcome was theright one, only to have that preconceptionturned upside down by the way in which awitness gave his evidence or by the argumentsof counsel. All judges and magistrates in Jerseyswear an oath on taking up appointmentwhich includes the words ‘that you willadminister justice to all manner of personswithout favour or partiality’, and I imaginethat a similar oath is taken in all parts of theCommonwealth. If the rule of law is to prevail,judges and magistrates must apply the lawwithout favour or partiality, i.e. impartially.

Next, can we ask ourselves if we are trulyindependent? The independence of thejudiciary is a gem that has many facets and Ishould like to speak on a few of them. Judicialindependence means first of all that the judge

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or magistrate should be personallyindependent. Consultation with fellow judgesmay sometimes take place but the decision isthat of the judge herself on the facts of theparticular case. The judge is personallyresponsible for any judgment that is given.

The judiciary should of course be free frominterference or undue pressure by theexecutive. This is fundamental to the rule oflaw. Judges should never be placed in aposition where their conduct of judicialproceedings can be influenced directly orindirectly by the executive. And no one isabove the law. As Dr Thomas Fuller famouslysaid in 1733, ‘Be you never so high, the law isabove you.’ Thus, if a Minister unlawfully sellsplanning permission for cash, he does notescape justice because he is a Minister. Moreprosaically, if a parliamentarian collects aparking ticket for parking his car unlawfully,he does not escape the fine merely because heis an MP. Unless you have some sovereignimmunity, whatever your social or politicalstanding in society, you are subject to the samelaws and to the jurisdiction of the same courts.

Freedom from pressure by the executive doesnot mean that we are immune from criticism,but it does mean that the executive shouldrecognize the domain of the judiciary and keepaway from it. No government minister likes aruling being made against him but it his dutyto accept it. I am glad to say that, on thewhole, the executive in my jurisdiction isrespectful of the domain of the judiciary. Ofcourse the media sometimes criticize particularrulings, but in general in moderate andappropriate terms. We have not experiencedthe pressure either from the executive oraggression from the media that is occasionallyseen in the UK where individual judges havebeen attacked as being unduly lenient or wrongin some other way.

Judges and the mediaRelations with the media are sometimes adifficult area. The Latimer House Guidelinesstate:

Legitimate public criticism of judicialperformance is a means of ensuringaccountability’ and ‘the criminal law andcontempt proceedings are not appropriatemechanisms for restricting legitimatecriticism of the courts.

But what about illegitimate criticism? Here theGuidelines are silent. Too often, perhaps, thejudiciary is silent in the face of public attacks.The House of Lords Select Committee hasgone on record as saying that the judges in theUK are unduly diffident about talking to themedia. In my own jurisdiction it is rare for theBailiff or the Magistrate to speak to the mediaabout something that is of public concern, orof concern to the media, which is much thesame thing. Most Chief Justices will rightly bereluctant to engage too often with the media.Judges should be judged on their performancein the courtroom and not as media performers.But on the other hand, if we think that judicialindependence is important, as it is, there maybe a need to explain ourselves a little more tothe public. It has often been suggested that ashort note for the media from the judge shouldaccompany a judgment on some matter ofpublic importance explaining in simple termswhat the ruling is all about. If that is done,there is no excuse for bad reporting.

But the principle goes wider than that.Certainly in my own jurisdiction, there iswidespread public ignorance about the way inwhich the courts operate, and the functions ofdifferent kinds of judges. In the UK Iunderstand that consideration is being given totraining a small number of judges tocommunicate with the media on issues where itseems desirable for the judiciary to explainitself. There is obviously a balance to be struckin maintaining public confidence between overfamiliarity with the media and standingcompletely aloof. In this era of instantcommunications and influential socialnetworks it seems to me that there is a case forgreater engagement than has been the case inthe past. It would be interesting to know howdifferent jurisdictions represented here dealwith the media.

Codes of conductCodes of ethics or conduct for the judiciary areencouraged both by the Plan of Action forAfrica and the Edinburgh Plan. In Jersey ourJudicial Association adopted a Code ofConduct in 2007. It is very short; and is in factbased upon the Maltese Code. It is printed in asmall booklet which is given to all members ofthe judiciary on appointment. It containspractical guidance as to the conduct of one’sprivate financial affairs and involvement in

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business activities. It is published on a judicialwebsite and is available for anyone to see.Litigants and the public know the standardswe have set ourselves. As Chief Justice I foundit helpful in resolving complaints of minorjudicial misconduct. These codes do, however,need to be kept under review so that they canbe adapted in the light of experience. They arean easy way in which any judicial officer cancheck whether something that he or she wantsto say or do might bring the judiciary intodisrepute, or affect the confidence of thepublic. As a broad rule of thumb, it seems tome that a code should be subject to reviewevery 5 years or so.

Financing and resourcing the courtsAnother important aspect of judicialindependence lies in the ability of courts tomanage their own finances. The LatimerHouse Guidelines provided that sufficient andsustainable funding should be provided toenable the judiciary to perform its functions tothe highest standards. The Principles adoptedat Abuja provide, rather more prosaically, that‘adequate resources should be provided for thejudicial system to operate effectively withoutany undue constraints which may hamper theindependence sought’. It is a pity that‘sufficient and sustainable’ should have beendiluted to ‘adequate’, and that the word‘undue’ should have been included, but that iswhere we are. In my own jurisdiction, theDepartments of the Judiciary Law provides, inrelation to staff, that ‘a sufficient number shallbe appointed to ensure the service of the[departments]’. As a minimum, therefore, theLatimer House Principles adopted at Abujamean that judges and magistrates should beadequately resourced and paid. We cannotexpect to be paid as if working in the privatesector, and the honour of serving as a judge ormagistrate, and the prospect of a reasonablepension, are of course important factors. Butjudges and magistrates are human and, if thejudiciary is to perform to the higheststandards, the salaries must bear somereasonable relationship to what good lawyerscan earn in private practice in their ownjurisdiction. Singapore is perhaps unusual inmaking a generous relationship with privatesector earnings a feature of judicial and otherpublic sector salaries.

So far as judicial establishments are concerned,my own firm view is that control of the judicialbudget by the judiciary is critical for ensuringboth that courts are not squeezed financiallyand that improper pressures are not brought tobear by the executive. Parliament sets the figure,and in my jurisdiction the Treasury is obliged toconsult with the Bailiff on the funding for thecourts before the budget is put beforeParliament. But once voted, it falls under thecontrol of the Court Service. This does notmean that each judge has to worry about howto pay for his books. But it does mean thatmoney is allocated by our Court staff who areultimately accountable to the Chief Justice. Italso means that our administrative staff developa loyalty to the Courts rather than to theGovernment. They are civil servants with all theterms and conditions of service of the civilservice, but they are accountable to the judgesand magistrates. There is, as a result, an espritde corps amongst all the judges and staff whichmakes working life in the judiciary apleasurable experience. I warmly recommend it.

The provision of adequate resources for thejudiciary includes in my view an adequate sumfor judicial training. Training is not specificallymentioned in the Principles but the LatimerHouse Guidelines lay down that a ‘culture ofjudicial education should be developed’. Noone would, I think, disagree with that as anobjective, and it is a pity that it was omittedfrom the Principles. The Guidelines providethat ‘Training should be organised, systematicand ongoing and under the control of anadequately funded judicial body’. Very oftensmall jurisdictions will have no law school oruniversity, and professional development andthe training of the judiciary will be a problem.It would be interesting to know to what extentsmall jurisdictions in this region are able toturn to a larger neighbour for assistance in thisrespect. I must say that in Jersey we are able torely to a considerable extent on advice andhelp from the Judicial Studies Board in theUnited Kingdom, and some of our judges andmagistrates are able to attend coursesorganised by the JSB. We have our own modestJudicial Training Programme which isprincipally concerned with induction coursesfor newly appointed members of the YouthCourt and for Jurats (who are lay judges orassessors in our High Court). We are planningan expansion of that programme but resources

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are very limited. One other way in which wedo try to improve knowledge and judicial skillsis by inviting distinguished judges and lawyersfrom outside the Island to address members ofthe judiciary. An Institute of Law was foundedin Jersey in 2008 and offers lectures for thelegal profession as part of the ContinuingProfessional Development programme.Nothing has yet focussed on the judiciary, butit may be possible to use that new resource inmy jurisdiction to enhance judicial training.

Appointment and removalPerhaps I can conclude by saying a few wordson the appointment of judges and theirdiscipline and dismissal. On appointments, thePrinciples state

Judicial appointments should be made onthe basis of clearly defined criteria and by apublicly declared process. The processshould ensure:

• equality of opportunity for all whoare eligible for judicial office;

• appointment on merit; and

• that appropriate consideration isgiven to the need for the progressiveattainment of gender equity and theremoval of other historic factors ofdiscrimination.

The Latimer House Guidelines provide that‘appointments should be made by a judicialservices commission … or by an appropriateofficer of state acting on the recommendationof such a commission.’

Most jurisdictions now have in place a judicialappointments commission, although there isconsiderable variance in the composition ofsuch commissions. Two things seem to me tobe important. The first is that the executive hasno part to play in such a commission or injudicial appointments, other than, perhaps, toexercise a power of veto for very seniorappointments such as that of the Chief Justice,

where it may be said that it is important for thegovernment to have faith in the integrity andcompetence of the Chief Justice. The second isthat a commission should be composed of amajority of judges or those with legalknowledge, but diverse in the sense that it isrepresentative of the community.

Dismissal is more difficult. It is clear that oneof the fundamental requirements for anindependent judiciary is that judges andmagistrates should be protected fromcapricious or improper dismissal ordisciplinary process. We all know of Common-wealth countries where judges have beenforced from office by the improper abuse ofexecutive power. Yet there must of course be ameans, at the end of the day, of removing ajudge who has been guilty of seriousmisbehaviour or shown himself unable toperform his judicial duties. If a judge is underthreat of removal, he must have the right to befully informed of the charges, to be representedat the hearing, to make a full defence and to bejudged by an independent and impartialtribunal. Even if there is general agreement onprocess, the application of these principles toparticular cases can give rise to considerablescope for disagreement, as was shown by thePrivy Council’s split decision in relation to theformer Chief Justice of Gibraltar, who wasironically one of those involved in the draftingof the Latimer House Guidelines. TheGuidelines lay down, finally, that disciplinaryprocedures should not include the publicadmonition of judges. The Chief Justice shoulddeliver any admonitions in private.

ConclusionThe Latimer House Principles have become thebedrock of Commonwealth values, includingof course respect for the rule of law. They areworthy of study, and of continuous debate, notonly by the judiciary but also by the legislatureand by the executive in all the countries of theCommonwealth.

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Introduction

The theme ‘Current Threats to JudicialIndependence’, is one of the ironically emotiveissues albeit equally of contemporarysignificance. The term ‘judicial independence’has been defined in various works by differentjurists. The lowest common denominator inthe literature is that the importance of thisnotion is beyond all question. However, theprecise meaning and scope of the concept‘judicial independence’ remain unsettled. AsSchutz P (as he then was) put it in Law Societyof Lesotho v. The Prime Minister (1988):

‘…independence of the judiciary is not aprecise and immutable concept that hasbeen handed down to us in a book with ablack cover. But its essentials are easilyperceived, as also its fundamentalimportance’.

As we all know the term judicial independence,in its simplest form, merely refers to the factthat the courts should not be subject todirection of anybody or authority in theperformance of their judicial function. Thecourts should only be subject to theconstitution and the law from which theyderive their very authority. In this newdemocratic era, the right-thinking members ofour society wish for genuine independence andaccountability of the judiciary which protectsand promotes the highest values andaspirations of our community. A weakjudiciary gradually loses respect and authorityand is often looked upon with disdain.

Most progressive countries which embracedemocratic dispensation and the rule of law,have judicial independence guaranteed andjealously guarded in their nationalconstitutions. The diction employed inconstitutional provisions that guarantee suchindependence is one that is usually carefullythought-of, to give assurance of the sanctity ofthe independence of the courts. The Executivearm of government is normallyconstitutionally mandated to ensure that

independence of the judiciary is protected andcherished.

In Lesotho, Article 188 (2) and (3) of theConstitution is the one in point. It brieflyprovides that the courts shall, in theperformance of their functions be independentand free from interference and should besubject only to the constitution and any otherlaw. Further that, the Government shouldaccord such assistance as the courts mayrequire to enable them to protect theirindependence, dignity and effectiveness.

Notwithstanding these guarantees, the notionof judicial independence constantly remainsthreatened, hence why it is a subject of interestin various fora. It is however generallyaccepted that independence of the courts has tobe vigorously fought for, for the benefit of thegeneral public – the people – who are inessence the primary beneficiaries of that right.As Judge Roger Warren once noted:

Judicial independence has to becontinually fought for – and won anew –each day. It is grounded in public respectfor the courts and for the judicial function.Like respect, it cannot be demanded. Itmust be earned.

Sharing almost similar sentiments, Lord Woolf,C.J is said to have lamented that: ‘Theindependence of the judiciary is therefore notthe property of the judiciary, but a commodityto be held by the judiciary in trust for thepublic’. I agree.

It is beyond all question that notwithstandingits significance, judicial independence isforever being tested, and to a large extentnegatively, so to speak. Where do the threats tojudicial independence emanate from? What arethey? Can they be surmounted? These arequestions that we now briefly turn to consider.

Current threats to judicial independenceThe threats to judicial independence usuallyrear their ugly heads in many forms and faces,

CURRENT THREATS TO JUDICIAL INDEPENDENCE

The Hon M.L. Lehohla, Chief Justice of Lesotho. A paper delivered at the Second Judges’Colloquium of the Southern African Chief Justices’ Forum, Livingstone, May 2011.

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and emanate from various sources as well. Theattempt here is not to provide an exhaustiveinventory of such acts, but to paint a picture bypicking some of the basic and common currentthreats.

Executive interferenceThis is one of the most common threats tojudicial independence which has always beenthere since inception of the concept of judicialindependence. It cannot be doubted that todaythere is a growing concern that the notion ofjudicial independence is facing a strongchallenge to its survival and we hear ferventarguments for cooperative governance by allorgans of the state. The Executive (being thepurse holder) nowadays claims the right tosupervise and manage the administration ofthe courts. For an example from Lesotho seeThe Judicial Officers’ Association v The PrimeMinister (2005): the Executive wanted to placethe Magistrates under the administration andcontrol of the District Administrators whowere responsible to the Ministry of LocalGovernment, and that action was successfullychallenged as violating the principle ofseparation of powers and independence of thecourts.

It may be argued that whilst there shouldalways exist meaningful communication linkbetween the judiciary and the executive, caremust always be taken to avoid sacrificing theautonomy and independence of the courts asguaranteed by the constitution. Interference bythe Executive arm of government can be athreat to judicial independence in multifariousforms. Here are some of the examples:

Resources. Most judiciaries are not yetfinancially autonomous and rely on theExecutive which holds the purse for resources(whether financial or human). The net effect ofthis is that the judiciary finds itself in aninvidious position where it has to constantlybeg from the Executive in order to performcertain judicial functions. A begging judiciarycan never be independent or at least seen to be.It is gratifying to note that, in Lesotho, the Billintended to give financial autonomy to thejudiciary has just gone through parliamentarystages and has become law. This is a positivestep which goes towards strengthening theindependence of our courts.

The Executive’s role in judicial appointments.In many of our Constitutions, the Executivebranch of government plays an important rolein the appointment of judges, especially of theHeads of our judiciaries. In Lesotho, forinstance, the Chief Justice and the President ofthe Court of Appeal are appointed by the Kingacting in accordance with the advice of thePrime Minister in terms of our Constitution.

That the Prime Minister, being head of theExecutive, advises the King as to who is to beappointed the head of the judiciary may smackof party politics and may become a contentiousissue in certain circumstances. However, suchfears had been seen in another light in Ex parteChairperson of the Constitutional Assembly inre: Certification of the Constitution of theRepublic of South Africa (1996) (quoted withapproval in Basotho National Party v TheGovernment of Lesotho (2002)) in thefollowing terms:

The mere fact…that the Executive makes orparticipates in the appointment of judges isnot inconsistent with the doctrine of theseparation of powers or with judicialindependence required by [Constitutionalprinciple]. In many countries in which thereis an independent judiciary and a separationof powers, judicial appointments are madeeither by the Executive or Parliament or byboth. What is crucial to the separation ofpowers and the independence of thejudiciary is that it should functionimpartially and that it should functionindependently of the legislature.Appointment of judges by the Executive ora combination of the Executive andParliament would not be inconsistent with[Constitutional principles].

Notwithstanding this important reassurance, itis still desirable that the system of judicialappointments should not only be independentbut should manifestly be seen to be so.Politicization of the judiciary can never bejustified regardless of the popularity orgoodness of motive and to seek to manipulateand draw the judiciary into the murky puddleof politicking is not desirable and can be aserious threat to independence of the courts.

In Lesotho, the existing practice in respect ofthe appointment of the Heads of SuperiorCourts may soon become history through theSixth Amendment to the Constitution Bill,

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2007. The Bill includes the Judicial ServiceCommission (JSC) in the appointment process.For instance, for the appointment of the ChiefJustice, the Bill provides that:

The Chief Justice shall be appointed by theKing acting in accordance with the adviceof the Prime Minister acting on therecommendation of the Judicial ServiceCommission.

The same applies in respect of the appointmentof the President of the Court of Appeal andthis would go a long way towards curbing themanifest tendency of the Executive to interferewith the independence of the Judiciary. Theinvolvement of the JSC in this manner maytherefore insulate the functions of appointmentof the Heads of the Superior Courts fromsuspicion of partisan political process whileensuring some level of accountability. This maygo a long way in guaranteeing theindependence of the judiciary since the processof judicial appointments is at the very heart ofthe concept of judicial independence.

Execution of judgments against thegovernment It is often complained that thegovernment (Executive) usually takes a longtime or totally disregards the courts’ decisionsespecially where it is a judgment debtor.Execution of judgments against thegovernment is said to be a major problem. Ifthose allegations are anything to go by, theeffect of such disrespect is that publicconfidence in the courts would erode if peoplefeel that the government which should beacting in a responsible exemplary manner justflouts the authority of the courts withimpunity. This may be a serious threat tojudicial independence.

Poor remuneration of judicial officersThis may be one of the factors that mayconstitute threats to independence of thecourts. Judicial officers who are not wellremunerated become vulnerable targets ofjudicial corruption. They are amenable tocompromise their independence and oath ofoffice by accepting inducements from lawyersand litigants due to financial pressures. AsJudge Thean, a retired judge from Singapore)puts it:

Judges should be free from having theirfinancial well-being dependent on theoutcome of the cases they are

deciding…Once judges are adequatelyremunerated, such that they need notendure economic hardship, pecuniary gainis hardly a justification for any judge tosway his decision…The maintenance of astrong and independent judiciary dependsin part on the payment of sufficientremuneration.

The opposite to ‘payment of sufficientremuneration’ may therefore constitute athreat to independence of the courts.

Insufficient judicial trainingThe judiciary can truly be independent ifjudicial officers are offered continuous judicialtraining to equip them with the necessary skillsrelevant to the dynamics of their judicial work.The opposite of that would be a threat to theirindependence since it will negatively reflect onthe quality of their judicial decisions. Trainingof the judiciary is an acknowledgment thatirrespective of the highest possible knowledgeone may have gathered from a law schoolnothing can replace hands-on knowledge fromlaw practice be it as a legal practitioner orjudicial officer on the bench.

This is the training that one acquires not somuch from the text books as from chambers ofsenior judicial officers. Even those should be aselect few who are able to frankly acknowledgetheir previous mistakes in the process of thedevelopment of their skills in judicial practice.I should hasten to confess what would be myown apprehension of going on board an airplane whose pilot has just related to me fifteenor so near misses and near crashes he has hadin the last ten or so years. Yet his experience isall the more vital if future air disasters are to beavoided. I seek to emphasize that vital judicialtraining is not something that a law school isequipped to provide. It is that special trainingthat equips a judicial officer with ethical normsand standards, necessary to maintaincompetence, integrity and effectiveness.

Attacks by the mediaThe media plays a very important watchdogrole over the organs of state and it is oftenbranded the fourth arm of government. Whilstobjective criticism of any judicialpronouncement is welcome, sometimes themedia reportage goes overboard by personalattacks the judges or making denigratorystatements over judgments of the courts, or

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gratuitous labeling of judges as ‘anti-government’, or as ‘executive-minded’,‘reactionary’, ‘counter revolutionary’, or as‘timid’, ‘corrupt’, ‘incompetent’ etc. All thesemay qualify as undue interference and mayaffect public confidence in the courts, but it istrue that judicial officers must also haveresilience to ward off the adverse effect of suchstatements and remain true to their judicialoath. As Chief Justice Gleeson of Australiaonce noted in his A Changing Judiciary:

By comparison with our predecessors,modern judges might appear anxious toplease. Sometimes we seem a little unclearas to exactly who we want to please, orwhat it is that might please them; and thereare still some among us who have difficultyin regarding the justice system as a serviceindustry…That we should value publicconfidence is beyond doubt. But ourthinking about what public confidencemeans, and how it is to be maintained,requires some clarification…The confidencewe seek from the public is confidence thatwe will pursue that objective with fidelityand integrity, even if to do so makes usunpopular, or causes dissatisfaction in somequarters. That confidence is not secured byseeking popular acclaim for our decisions,or by appearing to be responsive to threats.’

Lack of judicial accountabilityThe threats to judicial independence can alsocome from the judiciary itself, the so-calledself-inflicted wounds. The judiciary as a publicinstitution should also be accountable in itsoperations. The usual question would beaccountable to whom? We know the courtsaccount through the decisions they make, butthe accountability we are referring to here isthe one involving the clear ethical standardsand norms that guide the judiciary and judicialconduct. Without such clear norms thejudiciary may appear to be a law unto itself

and leave an open question as to ‘who shouldjudge the judges?’, and that may undermine thevery principle of judicial independence that thecourts continually seek to assert. TheBangalore Principles of Judicial Conduct, 2002and the UN Basic Principles on Independenceof the Judiciary may serve as the guiding lightas to how to develop the Ethical principles ofour judiciaries that will govern the conduct ofour judicial officers to preserve the honour,integrity and independence of our respectivejudiciaries.

ConclusionIt is incumbent upon all the stakeholders – thethree arms of government, the general public,the legal profession and the media to cooperatein one spirit, without compromising the tenetsof good governance, to ensure thatindependence of the courts is secured andcherished. As Justice Thean correctly observed:‘A judiciary that is perceived as weak andpartial is a liability to a country’. The conceptof judicial independence is the heart and soulof the judiciary and should be jealouslyguarded by our governments. Dr. RajendraPrasad wrote:

Whatever the Constitution may or maynot provide, the welfare of the countrywill depend upon the way in which thecountry is administered. That will dependupon the men who administer it…aConstitution, like a machine, is a lifelessthing. It acquires life because of the menwho control it and operate it, and Indianeeds today nothing more than a set ofhonest men who will have the interest ofthe country before them.

Our African countries equally need honest menand women who will have the interest of theircountries at heart, who will incessantly fightfor and cherish the independence of the courts.

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This paper is intended to be a relatively concisesummary of the youth justice processesapplicable to children and young persons inNew Zealand with a particular emphasis onrestorative justice. When using the term‘restorative justice’ I use a definition from theEsmee Fairburn Foundation, ‘an approach thatseeks to repair the damage caused by anoffender’s crime through dialogue andnegotiation involving the offender, the victimand the wider community’. The New ZealandMinistry of Justice’s Statement of RestorativeJustice Values and Processes declares that arestorative justice approach involves victims,offenders, their families and the community to‘collectively identify and address harms, needsand obligations, in order to heal and put thingsas right as possible’. These processes are basedon the values of participation, respect, honesty,accountability and empowerment.

The youth justice system in New Zealandtoday is based on the following assumptions:

(a) That contact with the criminal justicesystem is often itself harmful.

(b) That youth offending is often opportunisticbehaviour which will be outgrown.

(c) That young people should be confronted,held accountable for their offendingbehaviour and given opportunities to takeresponsibility for their actions by makingamends to the victim(s) of their offence(s).

(d) By involving a young person in a face-to-face meeting with the victim of the offence,the young person can see the effects of theirconduct in human terms.

As the Principal Youth Court Judge of NewZealand, Judge Andrew Becroft, stated in anaddress to the Institute of Policy StudiesSymposium in Wellington in 2005, the NewZealand Youth Justice approach is a worldleader in restorative responses to youthoffending. He pointed out that family groupconferences (FGC’s) are the ‘jewel in the crown

of the restorative response’. They are as he saysthe essence or lynchpin of the system.

Family Group ConferencesFGC’s have a variety of functions dependingon the stage of the process that they occur andthe purpose of the convening of the conference.They do not emerge for a first time offendercharged with a relatively minor offencebecause essentially the youth justice process ispredominantly a diversionary one unless theoffending is so serious as to warrant a child oryoung person being arrested. The relevantstatute, the Children Young Persons and TheirFamilies Act 1989 restricts when a child oryoung person can be arrested without warrant(s.214). When the legislation was first enactedthe youth justice provisions applied only toyoung people between the ages of 14 and 17.Recently an amendment has been passed whichbrings children aged 12 and 13 under theyouth justice umbrella in certaincircumstances. There are only three situationswhere criminal proceedings can be commencedagainst a child. They are where the child is ofor over the age of 10 years and the charge ismurder or manslaughter, where the child isaged 12 or 13 and he or she is charged with anoffence for which the maximum penalty isimprisonment for life or for at least 14 years,and where the child is aged 12 or 13 and is aprevious offender which has its own definitionunder the Act.(s.272)

Prior to this amendment children under the ageof 14 years were dealt with under the Care andProtection Provisions of the Act. A declarationcould have been made that the child was inneed of care and protection because he or she‘has committed an offence or offences thenumber, nature, or magnitude of which is suchas to give serious concern for the wellbeing ofthe child’. (s.14(1)(e)) That course of action isstill available in the case of a child and one ofthe objects of an FGC in cases such as these isto consider ‘whether the public interest

RESTORATIVE JUSTICE FOR CHILDREN: THE NEWZEALAND EXPERIENCE

His Honour Judge L J Ryan, District Court Judge of New Zealand A paper from the CMJAConference in Kuala Lumpur. July 2011.

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requires that criminal proceedings should beinstituted against the child’ (s. 258(ba)(i)) orwhether instead the child could be found to bein need of care or protection on the groundsmentioned above.

A restorative justice approachFrom the very beginning of the youth justiceprocess for a young offender the structureoffers a restorative approach. Not surprisingly,this starts with the police and what is referredto as the Youth Aid Section. Youth AidOfficers are specially appointed for their roleby virtue of their experience, their suitability todeal with children and young people, theirability to communicate successfully with theyoung offender’s families and theirdemonstrable acceptance of a rehabilitativeand restorative response. The police practice istailored to the principles enunciated in s.208which make it clear that ‘unless the publicinterest requires otherwise, criminalproceedings should not be instituted againstthe child or young person if there is analternative means of dealing with the matter’and that criminal proceedings ‘should not beinstituted against the child or young personsolely in order to provide any assistance orservices needed to advance the welfare of thatchild or young person’. The Act in fact requiresa police officer, when considering whether ornot to institute criminal proceedings tospecifically consider ‘whether it would besufficient to warn the child or young person,unless a warning is clearly inappropriatehaving regard to the seriousness of the offenceand the nature and number of previousoffences committed by the child or youngperson’.(s.209)

In the North Shore (Auckland City) where I sitin the Youth Court jurisdiction, I am advisedthat 60% of young offenders are dealt with byway of a formal warning. In most cases theseare first offenders and the offending isrelatively minor such as shop lifting or similar.

The next step up is alternative action. 30% ofyoung offenders are dealt with in this way onthe North Shore. This is the first time anyvictims become involved in the process becausein determining whether or not to takealternative action as opposed to formallycharging the young person with an offence,Youth Aid will take into account the views ofthe victim of the offending. More often than

not the alternative action will incorporate arequirement for reparation to be paid. Therewill be inevitably a demand for an apologywhether in writing or face-to-face with thevictim. Alternative action typically involvescommunity work and often the victim will beinvited to make suggestions as to anappropriate venue for that work to beundertaken. A plan is formulated and atimeframe imposed for its completion. I aminformed that 95% of these young offenderscomplete the plan imposed. They are requiredto sign a contract.

An example is this contract in a case whichinvolved arson. The terms are recorded on asimple form, signed by the young person, hisor her parent and a police representative:

1. I will write a letter of apology, or I willmake a personal apology. If I write a letter,the police will forward it on my behalf.This is due by [date].

2. I am prepared to do community work of 50hours and will do this at ...

3. I agree to pay $425 to the victim for thedamage I have caused.

4. Non association with [named person(s)].5. Curfew: Sun-Thurs 9 pm -7 am; Fri and Sat

Midnight – 7 am.6. Alcohol and drug ban: for duration of the

plan.

IT IS A CONDITION OF THIS CONTRACTTHAT I DO NOT REOFFEND. THISCONTRACT MUST BE COMPLETED BY[date]

What happens at a Family GroupConferenceThis is a creature of statute intended to involvethe child or young person, victim and theyoung person’s family, the police and theMinistry of Social Development, who aretasked with reaching a consensus outcomeaddressing the two key objectives of the CYPFAct in relation to youth offending. Specificallythose objectives are for the young person to beheld accountable for their offences and ‘dealtwith in a way that acknowledges their needsand will give them the opportunity to developin responsible, beneficial and sociallyacceptable ways’.(s.4) Prior to the FGC, incertain instances, a risk and needs assessmentwill be undertaken.

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The FGC’s are convened by a Youth JusticeCo-ordinator who is required to ensure as besthe or she can, that those persons who shouldparticipate at the conference actually attend.Where there is an identified victim a seriouseffort is made to ensure that person engages inthe process. The Police Youth Aid Sectionproactively makes contact with a victim whenan FGC is to take place and that person isencouraged to attend. Contact is usually byway of telephone call where the process isexplained. Where necessary in certain sensitivesituations, a Police Youth Aid Officer willsometimes visit the victim and whereappropriate the victim’s family to givereassurance that attendance and involvementby them will be carried out in a safe way. Atthe conclusion of any plan that may be agreedupon at an FGC the Youth Aid Officer willusually follow up by way of letter to the victimexplaining that the plan has been completedthus continuing engagement with the victimthroughout the process which in someinstances can take a lengthy period of time.

Depending on the type of FGC being convenedthere are different expectations that arise as tothe purpose of that conference. For instance, ifan ‘intention to charge’ FGC is convened inrespect of offending by a child (aged between12 and 14) the conference must considerwhether the public interest requires thatcriminal proceedings should be institutedagainst the child and whether the child is inneed of care and protection and if so whetherthe public interest might instead require anapplication for a declaration that the child is inneed of care and protection.

There is a hurdle to overcome before the policecan lay a charge in the Youth Court in respectof a young person where that person has notbeen arrested. There must be priorconsultation between the police and the YouthJustice Co-ordinator as to the desirability oflaying a charge in the Youth Court. If afterconsultation the enforcement officer stillwishes to charge the young person it ismandatory that within 21 days of the YouthJustice Co-ordinator receiving the requisitenotice from the enforcement officer, an FGC isconvened. At this ‘intention to charge’ FGC theconference first determines whether the youngperson admits the charge and if he or she does,the meeting then decides what should be doneand in addition decides whether the young

person should be prosecuted or whether he orshe is dealt with in a different way.

Where a Youth Court remands a young personin custody an FGC must be convened withinseven days of the remand and must becompleted within the following seven days. Thetask of the conference in this situation (and thevictim will be involved) is to consider whetherthe custodial remand should continue orwhether some alternative placement can beconsidered. This can include the question of bailand appropriate terms and conditions, such as acurfew, non-association with named personsand prohibition on the use of drugs or alcohol.

Where a young person appears before theYouth Court and does not deny the charge aYouth Court Judge must direct the conveningof an FGC. The conference is required toconsider what action and/or penalties shouldresult and recommend the appropriate way todeal with the young offender. This process isalso required where a charge has been denied,but has been proved after a defended hearing.A Youth Justice Co-ordinator can undercertain circumstances waive the requirementfor a FGC if an intention to charge FGC washeld in respect of the offence for which theyoung person is subsequently charged and doesnot deny. This avoids unnecessary duplicationof the process. Before the Youth Justice Co-ordinator can reach the view that convening afurther FGC would not serve any usefulpurpose, the Co-ordinator is required toconsult with those people who would beentitled to attend that FGC in the normalcourse of events.

A Family Group Conference must considerwhether a young person should be required toattend one or all of the following: a parentingeducation programme, a mentoringprogramme and an alcohol or drugrehabilitation programme and in the case of aparent or guardian having the care of a youngoffender whether that parent or guardianshould be required to attend a parentingeducation programme.

Role of the victimIn order for the FGC to satisfy the need for arestorative justice approach it is essential thatthe victim participates. In addition to theproactive steps taken by the police the victim iswritten to by the Youth Justice Co-ordinator

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who is available for the victim to consult with.Support people can accompany a victim andthe co-ordinator may present the victim’s viewsto the conference. The co-ordinator can alsopermit a spokesperson to attend on behalf ofthe victim. The process is explained carefullyto the victim and a short explanatory pamphletis provided which describes what theconference should consider making it clear thatthe young offender is to be held accountable, isto be able to right their wrongs and changetheir behaviour. The following excerpt fromthe pamphlet is indicative of the descriptionand information provided:

‘The conference will look at:

• Practical ways the young person can righttheir wrongs, acknowledge that what theydid was wrong and learn from theirmistakes.

• Things that may have contributed to theoffending and ways to help change theirbehaviour. This may include programmesthat help with life skills, employment andeducation, or activities like team sports andmentoring. This has been shown to reducethe likelihood of them reoffending.’

Because restorative justice requires communityinvolvement as well as the victim and theyoung offender and his or her family, policeand the youth advocate, the attendance ofhealth and education professionals and socialworkers is often a vital ingredient.

At the conclusion of the conference a plan isformulated with the agreement of allconcerned. Where there is no agreement theyoung offender appears back in the YouthCourt for the Judge to obtain a social workreport and plan with a view to undertaking asentencing exercise informed by the policiesand principles of the Act. Proper completion ofthe plan in the case of a first offence orsubsequent minor offending, will typicallyresult in the young offender receiving nocriminal record.

A booklet produced by Child Youth andFamily Services ‘Right the Wrong – What youNeed to Know About Youth Justice’ includesthe following real life story:

Luke has turned his life around. . .

When Luke was arrested for robbery heended up in Youth Court and the Judge

sent him to a Family Group Conference.Even though it was hard to face thevictim, it was good to get a chance to saysorry. Luke felt stink about the robberyand ended up buying the family’s kidssome games and wrote them a card. It feltgood to put things right. One of theawesome things about the meeting washaving his family there. ‘I didn’t know somany people cared about me’ said Luke.As part of his plan they sent him onCommunity Service, and he paid thevictims back for some of the stuff he stole.He also went on a programme that taughthim about his whakapapa and culture andhe got into a rugby team. ‘It showed methat there is another path I can go down’Luke said. ‘Before that I didn’t havedreams for the future.’ Luke is now inYear 13 at school, is part of the KapaHaka Group and wants to join the armywhen he leaves school. Kia kaha Luke.

Restorative justice and the courtThe Principal Youth Court Judge in his paper‘Restorative Justice in the Youth Court: ASquare Peg in a Round Role’ postulates thatthe principles of the Act may be consistentwith restorative justice processes but they donot explicitly mandate the use of thoseprocesses. As can be seen from this paper mostof the restorative justice process occurs out ofCourt but the Youth Court itself is still basedalong traditional adversarial lines with theobvious purpose to achieve the goal ofsafeguarding individual rights. Thus decisionssuch as bail, sentences that involveparticipation in a programme and residenceaway from home must be decisions for a Courtutilising sound legal principles.

The Court undertakes the role of an overseerin respect of FGC plans ensuring that theyoung person complies with them and in theevent of noncompliance considers theimposition of a higher level of sanction that isappropriate in all the circumstances. JudgeBecroft argues in his paper that perhaps adistinction should be drawn between processand the type of decision. He says ‘while somedecisions, such as bail or jurisdiction are forthe Court to make, the actual process used toarrive at many decisions could take more of arestorative tone. This would involve improvingaspects such as inclusion, support and control

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for various stakeholders. This has the potentialto improve outcomes for young people, theirfamilies and victims. However it is acceptedthat restorative justice in its purest formcannot be achieved simply by the adoption anduse of various restorative techniques.’

Of course at the centre of the restorative justiceapproach is the involvement of the victim. TheFGC encourages, at a face-to-face meeting,discussion and mutual agreement beingreached in order to restore relationships. It hasbeen described by Youth Court JudgeHenwood as a ‘powerful event’. In theCourtroom however the victim has no rights tospeak. They have no entitlement to attend theYouth Court. Although there is discretion on aYouth Court Judge to permit ‘any otherperson’ to be present that does not give thevictim an entitlement to address the Court asof right. This is in particular contrast to theSentencing Act and provisions in the Victim’sRights Act which provide for victims to presentstatements to the Court in an adult sentencingand for the provision of victim impactstatements. As a Youth Court Judge in asituation where the victim of an offence shouldhave further input into the sentencing processbeyond the reaches of the FGC, I can onlyrequest a social worker, when preparing asocial work report and plan, to include inputfrom the victim. That is unsatisfactory andhardly recognises any restorative justiceprocess.

Perhaps if there was a weakness in theprovision of a truly restorative approach in theYouth Court it would be ensuring communityinvolvement. Community work is regularlypart of every plan but I venture to say that isreally paying lip service only to the need torequire community participation in the youthjustice process. Lay advocates are being

appointed. Usually they are members of thelocal community with an interest in youthjustice but their role is quite limited in thatthey are appointed to provide a voice forfamilies and to strengthen the relationshipbetween the child or young person and his orher family group. A lay advocate is appointedto make sure the Court is aware of all culturalmatters that are relevant to the matter beforethe Court and to represent the youngoffender’s family to the extent that thoseinterests are not otherwise represented in theproceeding.

ConclusionIn conclusion, New Zealand has continued tolead the way in youth justice and care andprotection proceedings by the enactment of theChildren Young Persons and Their FamiliesAct 1989. It was a world leader in theintroduction of the restorative justice approachby legislating for the Family Group Conferenceprocess. New Zealand however is a countrywith a population of little more than fourmillion people and thus the proper andadequate resourcing of these processes hasalways been and will continue to be an issue.In order to achieve what I am sure is theachievable, Family Group Conferences and theprovision of programmes, therapeutic support,educational support and health support mustbe adequately funded. Victims need to be ableto participate in the Court processes instead ofsimply the out of Court processes. They shouldhave the opportunity of addressing the Courtin appropriate cases and a sentencing Judgeshould have access to all the information he orshe would have were the victim the subject ofadult offending instead of youth offending.There can be no justification for a lesserapproach.

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Litigation about judicial remuneration issurprisingly common in Canada. In thisexample, the court held that the rulesgoverning the tenure of office andremuneration of the Case ManagementMasters in Ontario were in some respectsunconstitutional.

The office of Master has existed for manyyears in Ontario. In 1996 the traditional officebegan to be phased out and a new set ofMasters, Case Management Masters, wasintroduced. After litigation had been started in2001, a settlement was reached leading tolegislative changes which gave the CaseManagement Masters enhanced tenure andremuneration. Nonetheless, the salaries ofCase Management Masters had been $155,000in 2002, raised by 2009 to $190,463; at thesame dates the traditional Masters’ salaries,the same as provincial court judges, rose from$172,210 to $248,057.

The judge at first instance held that two provi-sions relating to the tenure and remunerationof Case Management Masters were unconsti-tutional. On tenure, the judge held that therequirement in s. 86.1 of the Courts of JusticeAct that the Attorney General concur in therecommendation about Case ManagementMasters continuing in office after age 65 wasunconstitutional. On remuneration, the judgeconcluded that s. 53(1)(b) of the Courts ofJustice Act was unconstitutional because thedirect linkage between the salaries of CaseManagement Masters and a specific categoryof public servant (SMG3), without more, failedto provide for judicial independence.

The Crown appealed only the component ofthe application judge’s decision relating to theremuneration of Case Management Masters. It

did not appeal the tenure component of thedecision. The Crown’s position was that, inlight of their constitutionally and statutorilyrestricted jurisdiction and their limited role asfinal arbiter of disputes or guardians of theConstitution, Case Management Mastersrequired a less stringent level of protectionthan other judicial officers. Accordingly, theCrown submitted that the current provisionsgoverning the remuneration of CaseManagement Masters were sufficient to satisfythe essential conditions of judicial independ-ence required for that office.

MACPHERSON JA referred to the leadingcases, Provincial Court Judges Reference andProvincial Court Judges’ Association of NewBrunswick v New Brunswick. The three pointsthat he drew from these cases were that theconstitutional principle of judicial independ-ence requires a ‘special process’ for dealingwith the question of judicial remuneration,that the goal of the process is to be ‘indepen-dent, effective and objective’, and that theremust be an ‘independent body’ involved in, ata minimum, making recommendations togovernments about judicial remuneration. Thephrases ‘special process’, ‘independent, effec-tive and objective’ and ‘independent body’were, admittedly, only general phrases. Theywere touchstones or guidelines, not rigidprescriptions. There was a need for flexibilityin interpreting and applying these phrases withrespect to the wide range of judicial officersperforming judicial functions throughoutCanada.

With respect to objectivity, the formula set outin the relevant Order-in-Council linked thesalaries of Case Management Masters to anobjectively chosen comparator, the SMG3classification for senior public servants at the

THE MASTERS’ ASSOCIATION OF ONTARIO v HERMAJESTY THE QUEEN IN RIGHT OF ONTARIO

30 March 2011, 2011 ONCA 243

ONTARIO COURT OF APPEAL, Macpherson, Gillese and Laforme JJ.A.

LAW REPORTS

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Assistant Deputy Minister level. With respectto effectiveness, the first instance judge did nottake issue with this component of the process.The fulcrum for the appeal was the‘independent’ component of the currentprocess for setting the remuneration of CaseManagement Masters. The Crown contendedthat flexibility was permitted in this domainand that, according to the court in OntarioDeputy Judges Association. v Ontario (2006),it is permissible to ‘link judicialremuneration... with the remunerationprovided for an objectively-chosen comparatorgroup.’ This was precisely what the 2001settlement accomplished, said the Crown, andthe respondents must live with their ownchoice.

In spite of the flexibility permitted by the caselaw, there were certain minimum requirementsthat grounded the ‘independent’ component ofthe special process for setting judicial remuner-ation. The most important requirement wasthat there must be a ‘body’ or an ‘entity’ or a‘commission’ or a ‘person’ in the role of inter-mediary between the government and thejudiciary and this intermediary must beindependent of the government. In the caselaw, this requirement had been described as theneed for ‘an institutional sieve between thejudiciary and the other branches of govern-ment’ What was missing in the special processset out for Case Management Masters was that

there was no ‘body’ or ‘entity’ or ‘commission’or ‘person’ between the government and thejudiciary; there was no ‘institutional sieve’.The Crown contended that the institutionalsieve was the SMG3 classification. However,that could not be. The SMG3 classificationwas established and controlled by the govern-ment; it was the precise opposite of anintermediary at arm’s length from the govern-ment.

MacPherson JA observed that with respect toall other judicial officers in Ontario – federallyappointed judges, Ontario Court of Justicejudges, Ontario Small Claims judges anddeputy judges (who sit part-time), and justicesof the peace – their remuneration was deter-mined by the ‘special process’ recommended inProvincial Court Judges Reference. Anindependent body engaged in a process ofhearing submissions from government and thejudiciary and then made recommendations tothe government about judicial remuneration.The composition, structure and procedure ofthese ‘commissions’ varied, but the core of theprocess was shared by all. By linkage toprovincial court judges, this process alsoapplied to the near-obsolete office of tradi-tional Master. In his view, there was no reasonfor Case Management Masters to be thesolitary exclusion from this shared, and consti-tutionally appropriate, picture.

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Applying the Canadian Charter of Rights andFreedoms, the court held that limitations ofmedia activity in respect of court cases,although they infringed the freedom ofexpression, were justified.

DESCHAMPS J. said, ‘The open courtprinciple is of crucial importance in ademocratic society. It ensures that citizens haveaccess to the courts and can, as a result,comment on how courts operate and onproceedings that take place in them. Publicaccess to the courts also guarantees theintegrity of judicial processes inasmuch as thetransparency that flows from access ensuresthat justice is rendered in a manner that is notarbitrary, but is in accordance with the rule oflaw. The right to freedom of expression is justas fundamental in our society as the open courtprinciple. It fosters democratic discourse, truthfinding and self-fulfilment. Freedom of thepress has always been an embodiment offreedom of expression. It is also the mainvehicle for informing the public about courtproceedings. In this sense, freedom of the pressis essential to the open court principle.Nevertheless, it is sometimes necessary toharmonize the exercise of freedom of the presswith the open court principle to ensure that theadministration of justice is fair. In this appeal,this Court must determine whether certainrules are consistent with the delicate balancebetween this right, this principle and thisobjective, all of which are essential in a freeand democratic society.’

The Canadian Broadcasting Corporation andother media organisations wished to film, takephotographs and conduct interviews in thepublic areas of courthouses, and also tobroadcast the official audio recordings of courtproceedings. The existing rules limited theplaces where the first of these activities mighttake place and prohibited the second. Theappellants submitted that these rules

unjustifiably infringed the freedom of the pressto which they are entitled.

Deschamps J noted that before the impugnedmeasures were adopted, journalists couldmove about freely in the public areas ofQuebec courthouses, with or withoutequipment for recording sound, filming ortaking photographs. According to the evidenceaccepted by the first instance judge, ‘on-the-spot’ interviews make journalists’ reports moreinteresting. However, as a result of the wayjournalists went about their work, crowdswould form in front of courtroom doors, itwould be difficult to get through doorwaysand there would be crushes, races downhallways and jostling. The evidence alsoshowed that media representatives did notalways comply with special security measuresimplemented by courthouse administrators. Inaddition to affecting the serenity of hearingsand decorum, the increased presence ofjournalists in courthouses was a source of greatstress for witnesses and their families. Someparticipants even refused to appear in court forthis reason. In June 2004, in response tocertain incidents, a working group was set up,and its recommendations convinced the judgesof the Superior Court that they had to act torestore order. They adopted the new rules anda ministerial directive applied the sameprinciples to other courts in Quebec.

In their challenge to the rules, the applicantsrelied primarily on freedom of expression,including freedom of the press, as guaranteedby the Charter. The media organizationsargued that courthouses are places where theprotection of freedom of expression is strongand where there are no restrictions on theability of the media to employ the meansavailable to them to prepare more accuratereports.

The Court had noted on numerous occasionsthat the protection of those rights is not

CANADIAN BROADCASTING CORPORATION vCANADA (ATTORNEY GENERAL)

28 January 2011

SUPREME COURT OF CANADA, Mclachlin CJ. and Binnie, Lebel, Deschamps, Fish, Abella,Charron, Rothstein and Cromwell JJ., 2011 SCC 2

35

without limits and that governments shouldnot be required to justify every exclusion orregulation of a form of expression — whetherit concerns the location or the means ofemploying that form of expression. What hadto be determined was whether the activities themedia organizations wanted to engage in wereprotected by the Charter and, if so, whetherthe limits on engaging in those activities thatwere imposed by the impugned provisions arejustified.

The Court held that the activities wereprotected by the Charter. The right to freedomof expression was infringed. The questionwhether the impugned measures, whileinfringing freedom of expression, werejustified, was to be resolved by applying thewell-known test developed by Dickson CJ inOakes. When a protected right is infringed, thegovernment must justify the limit byidentifying a pressing and substantialobjective, demonstrating that there is arational connection between the objective andthe infringement of the right, and showing thatthe chosen means interferes as little as possiblewith the right and that the salutary effects ofthe measure outweigh its deleterious effects.

To constitute a justifiable limit to a right or afreedom, the objective of the impugnedmeasure must advance concerns that arepressing and substantial in a free anddemocratic society. On the issue of filming,taking photographs and conductinginterviews, the impugned measures had thefollowing objectives: to maintain the integrityof and public confidence in the administrationof justice; to ensure the impartiality of trialsand the serenity of judicial hearings; to ensurethe safety of litigants and their families andfriends, and respect for their dignity andprivacy; to maintain order and decorum in andnear courtrooms; and to ensure that all usersof courthouses have safe access to courtroomsand that they can move about freely and testifycalmly and without fearing that members ofthe media will catch them off guard, invadetheir privacy and follow or even chase afterthem. The court found that these objectiveswere pressing and substantial.

At the second stage of the Oakes analysis, thecourt must determine whether there is arational connection between the means usedand the legislature’s objectives. Here, the

defendant must establish a connection betweenthe infringement and the benefit that wassought in adopting the means, and this is to bedone either by providing concrete evidence or,where it is impossible to provide such evidence,on the basis of reason or logic. Here there wasevidence which satisfied that test. It wastherefore reasonable to expect that themeasures would have a positive effect on themaintenance of the fair administration ofjustice by fostering the serenity of hearings anddecorum and by helping to reduce, as much aspossible, the nervousness and anxiety thatpeople naturally feel when called to testify incourt.

McLachlin J. (as she then was) summarized thethird stage of the Oakes analysis as follows:

The impairment must be ‘minimal’, that is,the law must be carefully tailored so thatrights are impaired no more thannecessary. The tailoring process seldomadmits of perfection and the courts mustaccord some leeway to the legislator. If thelaw falls within a range of reasonablealternatives, the courts will not find itoverbroad merely because they canconceive of an alternative which mightbetter tailor objective to infringement.

The Court held that the solution proposed inthe impugned measures with regard to filming,taking photographs and conducting interviewsfell ‘within a range of reasonable alternatives’.

The official audio recordings of hearingsreproduced the words of people who haveparticipated in court proceedings and werecompelled, either morally or legally, to do so.Such people were not free to refuse to appear.A person, whether a party or a witness, whowas summoned to testify in court must addresshis or her testimony to the court, in thecourtroom, and not to the media’s audienceoutside the room. To broadcast the audiorecordings of hearings would be to alter theforum in which the testimony is given. Audiorecordings of hearings are made to conserveevidence. This method of capturing andconserving testimony is the modern alternativeto having stenographers take notes in thecourtroom.

The Court could not find that the prohibitionagainst broadcasting these recordingsadversely affected the ability of journalists to

36

describe, analyse or comment rigorously onwhat takes place in the courts. The negativeeffect that broadcasting the audio recordingswould have on the proceedings and the realimpact it would have both on thoseparticipating in the hearing and on the searchfor the truth inherent in the judicial process

were factors that had to be taken into account.To broadcast the recordings in the name offreedom of the press would undermine theintegrity of the judicial process, which the opencourt principle was supposed to guarantee.

DOROTHY WINTON TRAVEL BURSARIES FUND

WE NEED YOUR DONATIONS!This fund was set up in the name of the first Secretary of the Association whodied in October 2003. Dorothy’s time as the first Secretary of the Associationwas a very happy one and she was very concerned that justice (and support forjustices) should be available to poor and rich nations alike.

“She had considerable knowledge of the Commonwealth, a genuine interest inits people and she was prepared to travel extensively to promote theAssociation, being especially concerned that people from the less welldeveloped countries should be able to play a full part.” Stated Brenda Hindley,former Editor of the CJJ.

The Fund was used to assist participation of three magistrates from Malawi,Uganda and the Solomon Islands at the CMJA’s 14th Triennial Conference andwill be used to used to assist participation of judicial officers who would nototherwise have the opportunity to benefit from the training opportunity offeredby the educational programme of the Triennial Conferences of the Association.

We WELCOME ALL CONTRIBUTIONS to the Bursary fund. Contributionsshould be (by cheques drawn on a UK bank, bank transfers – making clearwhat the transfer is related to or bankers draft made payable to CMJA) andshould be sent to theCommonwealth Magistrates and Judges Association atUganda House58-59 Trafalgar SquareLondon WC2N 5DX, UK.

Please remember that as a registered charity, the CMJA can reclaim tax paidby UK tax payers. If you include your name and address (e.g. on the back ofthe cheque), we can send you the form to fill in for gift aid purposes – a simpledeclaration and signature.

37

In an important case of the separation ofpowers, the court held that Members ofParliament accused of dishonesty in respect ofclaims for expenses could be prosecuted in thecourts and could not hide behindParliamentary privilege.

A number of Members of Parliament wereaccused of false accounting in respect ofdishonest claims for expenses and allowancesmade while they were serving Members ofParliament. The defendants claimed thatcriminal proceedings could not be broughtagainst them as their actions were protected byparliamentary privilege as part of ‘proceedingsin Parliament’ for the purposes of article 9 ofthe Bill of Rights 1689 and because Parliamenthad ‘exclusive cognisance’ to regulate its owninternal affairs. These claims were rejected.

LORD PHILLIPS OF WORTH MATRAVERSfirst addressed the question ‘who decides theissue?’

In the 17th and 18th centuries there was adispute between the courts and the House ofCommons, often acrimonious, as to who wasthe final arbiter of the scope of parliamentaryprivilege. This dispute was largely resolved inthe course of the 19th century. Although theextent of parliamentary privilege wasultimately a matter for the court, it was one onwhich the court would pay careful regard toany views expressed in Parliament by eitherHouse or by bodies or individuals in a positionto speak on the matter with authority.

On Article 9 of the Bill of Rights, Lord Phillipsaddressed the issue as to the meaning of‘proceedings in Parliament’. The Bill of Rightsreflected the attitude of Parliament, after theRestoration, to events in the reign of Charles I,and in particular the acceptance by the Courtof King’s Bench that parliamentary privilegedid not protect against seditious comments inthe chamber. The primary object of the article

was unquestionably to protect freedom ofspeech in the House of Commons. Thequestion was, having regard to that primaryobject, how far the term ‘proceedings inParliament’ extended to actions that advancedor were ancillary to proceedings in the Houses.

In Bradlaugh v Gossett (1884) Stephen J said ‘Iknow of no authority for the proposition thatan ordinary crime committed in the House ofCommons would be withdrawn from theordinary course of criminal justice.’ In Pepperv Hart (1993) Lord Browne-Wilkinson said

In my judgment, the plain meaning ofarticle 9, viewed against the historicalbackground in which it was enacted, wasto ensure that Members of Parliamentwere not subjected to any penalty, civil orcriminal, for what they said and were able,contrary to the previous assertions of theStuart monarchy, to discuss what they, asopposed to the monarch, chose to havediscussed.

Lord Browne-Wilkinson made a similarobservation in Prebble v Television NewZealand Ltd (1995).

In Ex p Wason (1869) the issue was whether aprosecution would lie against three persons,two of whom were members of the House ofLords, for conspiring to deceive the House.The court held that it would not. Cockburn CJheld, at p 576:

It is clear that statements made bymembers of either House of Parliament intheir places in the House, though theymight be untrue to their knowledge, couldnot be made the foundation of civil orcriminal proceedings, however injuriousthey might be to the interest of a thirdperson. And a conspiracy to make suchstatements would not make the personsguilty of it amenable to the criminal law.

REGINA v CHAYTOR

1 December 2010, UKSC 52

SUPREME COURT OF THE UNITED KINGDOM, Lord Phillips of Worth Matravers, LordHope of Craighead, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Brown ofEaton-Under-Heywood, Lord Mance, Lord Collins of Mapesbury, Lord Kerr of Tonaghmoreand Lord Clarke of Stone-Cum-Ebony, 2010

38

Ex p Wason was distinguished by the SupremeCourt of Ontario in R v Bunting (1885), whereit was held that a conspiracy to bring about achange in the Government of Ontario bybribing members of the Legislative Assemblyto vote against the Government was anindictable offence at common law committedat the time of the conspiracy itself and withinthe jurisdiction of the ordinary courts.

There was some authority for the propositionthat the receipt of bribes by MPs was notcognizable in the courts (the Supreme Court ofIndia in Rao v State of India (1998)) but the‘sparse’ case-law supported the propositionthat the principal matter to which article 9 isdirected was freedom of speech and debate inthe Houses of Parliament and in parliamentarycommittees. This was where the core oressential business of Parliament took place. Inconsidering whether actions outside theHouses and committees fall withinparliamentary proceedings because of theirconnection to them, it was necessary toconsider the nature of that connection andwhether, if such actions did not enjoy privilege,this was likely to impact adversely on the coreor essential business of Parliament. If thisapproach were adopted, the submission ofclaim forms for allowances and expenses didnot qualify for the protection of privilege.

There were good reasons of policy for givingarticle 9 a narrow ambit that restricted it to theimportant purpose for which it was enacted—freedom for Parliament to conduct itslegislative and deliberative business withoutinterference from the Crown or the Crown’sjudges.

Precedent, the views of Parliament and policyall pointed in the same direction. Submitting

claims for allowances and expenses did notform part of, nor was it incidental to, the coreor essential business of Parliament, whichconsisted of collective deliberation anddecision making. The submission of claims wasan activity which was an incident of theadministration of Parliament; it was not partof the proceedings in Parliament.

Lord Phillips reviewed at length the history ofParliament’s claim to ‘exclusive cognisance’ Heconcluded that Parliament by both legislationand by administrative changes had to a largeextent relinquished any claim to have exclusivecognisance of the administrative business ofthe two Houses. Decisions in relation tomatters of administration were taken byparliamentary committees and it had beencommon ground that these decisions wereprotected by privilege from attack in thecourts. A parliamentary report haddistinguished such decisions and theirimplementation, expressing the view that thelatter was not subject to privilege. Lord Phillipsconsidered that view to be correct.

For these reasons he was satisfied that neitherarticle 9 nor the exclusive cognisance of theHouse of Commons posed any bar to thejurisdiction of the Crown Court to try thedefendants.

LORD RODGER OF EARLSFERRY andLORD CLARKE OF STONE-CUM-EBONYdelivered concurring judgments.

LORD HOPE OF CRAIGHEAD, BARONESSHALE OF RICHMOND, LORD BROWN OFEATON-UNDER-HEYWOOD, LORD MANCE,LORD COLLINS OF MAPESBURY and LORDKERR OF TONAGHMORE agreed.

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Writing of Judgments: A Practical Guidefor Courts and Tribunals

By Dato’ Syed Ahmad Idid

Research Assistant Umar A. Oseni

Considering the varying experience levels ofjudiciaries across the Commonwealth, properjudgment writing might not be commonknowledge to all. Judgment writing is arguablythe most crucial task a judge undertakesconsidering it shows litigants reasons for theruling, judicial impartiality, and promotes theadministration of justice. The author arguedjudicial writing has three overarchingprinciples: accuracy, brevity, and clarity. Oneaspect of judicial writing is legal reasoning.There are two types of legal reasoning;deductive and inductive. Deductive legalreasoning (same as syllogism) follows a logicalprocess where one starts with a major premiseleading them to a minor premise which thenallows them to draw up a conclusive thought.Opposite is inductive legal reasoning where onegeneralises an idea to produce a universal claimfrom observed instances. A second aspect ofjudicial writing is judicial reasoning which alsohas two opposing types. First is the formalistmodel wherein composing a judgment a judgemust clarify legal rules in a systematic manner.The realist model on the other hand allows thejudge to reach a conclusion and then laterrationalize it through logical reasoning. Hethen states how a standard judgment containsevidence of both sides, the decision of thejudge, and the reasons behind the decision. Interms of sequential content a judgment shouldgenerally follow this order: heading, name ofparties and respective positions in the suit,opening paragraph outlining the focus, factssubmitted by both parties, points fordetermination, decision on the points, finalorder, signature and date. Neutrality is anothercrucial aspect in general judgment writing.

Moving forward he moves to more specificexamples of judgment writing, breaking down the

various judgments in common and civil law.Common law is characterised as judge-made lawwhere judicial precedents are considered binding.There are again three types of judgments underthis style. Single or sole judgments are whereseveral different judges contribute to form acomprehensive judgment. Seriatim judgments arewhere all sitting judges write separate judgmentsand read them in open court emphasising judicialindependence. Finally, single majority judgmentsare where one judge writes a single judgmentvoicing the opinion of the court. In civil lawsystems judges have no role in making laws,instead they make decisions through theapplication of the law. Judgments are usuallyconcise, to the point, and belong to the court as aninstitution rather than individual judges. He alsodiscusses in detail decision writing in Indonesiaand the Philippines’ focusing on the draftingprocess. Avoiding grammar mistakes and usingplain language are key elements to this. Theauthor then sets out to explain the role of personalperspective in judgment writing. He admits thereare some instances where all other options havebeen exhausted and a judge relies on personalreasoning to make a decision, but when this is thecase the structure and content of the decision willbe critically examined. Once again impartiality isessential when using ones personal perspective.

Concluding the author focuses on the deliveryof a court judgment. A delay in producing awritten judgment can be frustrating and a 90day period is ample amount of time tocomplete the entire process. He uses Australia,Guyana, and Nigeria as good examples ofCommonwealth nations who use the 90 dayrule. He calls on Malaysia to adopt a similarsystem providing examples of shortcomings intheir current system. Undoubtedly thispublication is a great reference tool for alljudges to use in their judicial writing process.It outlines all of the general principles whilestill providing specific examples in manyinstances.

BOOK REVIEWS

40

Towards a Justice Delivery System forChildren in BangladeshA Guide and Case Law on Children inconflict with the Law

By Justice M Imman Ali

Published by UNICEF Bangladesh 2010

http://www.unicef.org/bangladesh/Justice_for_Children_2010.pdf

With children accounting for 50% of thepopulation in Bangladesh and Bangladeshbeing one of the first countries to ratify theConvention on the Rights of the Child, thispublication sets out the importance of therights of the Child. Despite this, theimplementation of the Children’s Act inBangladesh leaves a lot to be desired accordingto the author. The publication is divided intodifferent chapters, relating to the internationallegal framework, including the Convention onthe Rights of the Child and the internationalstandards relating to Justice for Children.

The work begins with establishing theinternational historic background to the Rightsof the Child. Despite Bangladesh having signedthe convention, has not changed all itslegislation to comply with its internationalobligations. The author raises the issue ofdomestic application of the CRC byBangladeshi courts and outlines the newthinking on Justice for children whichconsiders the rights of children not only inconflict with the law but also in contact withthe law. He then reviews children in Conflictwith the law under the Children Act of 1974.Its main contention is the formal definition ofa child and the discrepancy between the Act(defining a child as below the age of 16) andthe CRC (defining a child as below the age of

18). Furthermore, he discusses the problem ofage determination by police officers due to thelow rates of birth registration in Bangladesh,although admitting improvements have beenmade in this area. Moving forward he delvesinto the domains of arrests, bail, and pre-trialdetention highlighting the various rightschildren possess. In particular it discusses theroles of various actors including police andprobation officers, parents, Magistrates, aswell as temporary custody services. Justice Alithen focuses on jurisdiction of courts in termsof qualifications for determining if a court canact as a Juvenile Court. Moreover, itestablishes two conditions a Juvenile Courtneeds to fulfil, namely jurisdiction over theperson and over the offense. It also discusses indetail the challenges in determining whether ornot the court has jurisdiction over the person,most importantly with age determination. Theauthor then sets out procedures that need to befollowed by the Juvenile Courts in order toassure constitutional guarantees are protectedand a fair trial ensues. Likewise, he then laysout the principles of sentencing under theChild Act. Above all, it focuses on determiningthe best interest of the child and the variousoptions the Court has. The work concludeswith custody and detention procedures as wellas conditions for both. Also he provides asummary of the key principles of the separateregime for children under the Children Act andissues that need to be addressed in the future.

The publication is clearly set out and a usefulbackground to the rights of the child inBangladesh, but is also relevant to otherjurisdictions where the same issues are beingdiscussed and where countries have ratified butnot fully implemented the CRC.

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