PROTECTION AND PROMOTION OF JUDICIAL INDEPENDENCE
Strengthening Judicial Independence
For over 50 years the CMJA has played a vital role in developing judicial standards and strengthening judicial independence and enhancing the rule of law. The CMJA acts as a watchdog when there are threats to judicial independence and co-operates with other organisations in promoting the Commonwealth fundamental values and the Commonwealth-Latimer-House-Principles-on-Three-Arms-of-Government-compiled.pdf These values and principles include:
- Respect for the independence and integrity of the judiciary, and for the protection of civil, political, economic, social and cultural rights for all without discrimination; and
- A commitment to access to justice and an independent judiciary which are fundamental to the rule of law.
It has made representations on judicial independence and constitutional reforms that affected judicial officers across the Commonwealth and the statement issued are available at: https://www.cmja.org/statements-and-resolutions/
The CMJA has been a member of the network of NGOs led by the International Commission of Jurists (ICJ) and the International Bar Association’s Human Rights Institute (IBAHRI) the aim of which is to ensure that the UN and in particular the Human Rights Council considers issues relating to the independence of lawyers and judges. It has supported fringe sessions at the Human Rights Council Meetings and oral and written statements made at the sessions, most recently during the virtual session of the Human Rights Council in April 2020 when the CMJA supported submissions on civil and political rights during the COVID 19 pandemic in particular in relation to the administration of justice and judicial independence.
The CMJA has continued to work closely with the UN Special Rapporteur on the Independence of Judges and Lawyers and it submitted a response to the request for information on disciplinary cases in April 2020. Following meetings with the then UN Special Rapporteur on the Independence of Judges and Lawyers, the United Nations Human Rights Council passed a resolution in 2013 calling on: “All States to guarantee the independence of judges and lawyers and the objectivity and impartiality of prosecutors, as well as their ability to perform their functions accordingly, including by taking effective legislative, law enforcement and other appropriate measures that will enable them to carry out their professional functions without interference, harassment, threats or intimidation of any kind…” (A/HRC/23/L.9 – Human Rights Council resolution on the “Independence and impartiality of the judiciary, jurors and assessors, and the independence of lawyers Independence and impartiality of the judiciary, jurors and assessors, and the independence of lawyers”- Twenty-third session, June 2013).
In 2021, the Association provided input to the UN Special Rapporteur on the Independence of Judges and Lawyers consultation on the effect of COVID 19 on the judiciaries across the Commonwealth and on the work of the Special Rapporteur on Gender Equality in the Judiciary in 2021.
Judicial Appointments and Discipline
The CLA, CLEA and CMJA produced a report on “Judicial Appointments Commissions: A Clause for Constitutions” in May 2013 which sets out good practice for the establishment, composition and running of Judicial appointment commissions. This formed the basis for the Commonwealth Secretariat’s consultation across the Commonwealth which led to the formulation of the Model Law for Judicial Services Commissions published in 2018.
Independence of the Lower Courts
The independence and integrity of the magistracy has been a constant priority of the Association since its formation as the Commonwealth Magistrates Association in 1970. In 2009 at its Triennial Conference held in Turks and Caicos, the CMJA General Assembly deplored the fact that in parts of the Commonwealth the independence of the magistracy (the magistracy also encompassed all members of the lower judiciary) was inadequately safeguarded and requested the CMJA Council together with the Commonwealth Secretariat to take positive steps to eliminate these breaches of the Commonwealth (Latimer House) Principles wherever they occurred.
A set of Guidelines for policy makers in government was drafted as part of the report on the independence and integrity of magistrates in the Commonwealth and this was put before Commonwealth Law Ministers in 2011. Law Ministers agreed to:
“to consider taking appropriate steps to strengthen their domestic legal frameworks and other measures for assuring the independence and integrity of their magistracy in compliance with the Commonwealth fundamental values, having due regard to the suggested Guidelines.” (Paragraph 8 of the Communiqué).
The full report on the Status of Magistrates’ in the Commonwealth including the Guidelines was published in 2013.
Following on from the Report, the CMJA has continued its work in supporting the strengthening of the lower judiciary. In August 2016 the CMJA announced the launch of the updated “A Guide For the Magistrate in the Commonwealth: Fundamental Principles, Recommended Practices (formerly “The Magistrate in the Commonwealth: A Training Manual), which was edited by the CMJA President, Dr. John Lowndes, Chief Judge of the Local Court of the Northern Territory of Australia. With the assistance of a grant from the Patron’s Fund, the CMJA distributed the Guide to all its members in January 2017. In September 2018, the CMJA’s General Assembly agreed the “Brisbane Declaration on the Independence and Integrity of the Lower Courts.
Commonwealth (Latimer House) Principles
The CMJA was one of the partner organisations that formulated the Commonwealth Latimer House Guidelines on Parliamentary Supremacy and Judicial Independence (1998) which led to the Commonwealth-Latimer-House-Principles-on-Three-Arms-of-Government-compiled.pdf endorsed in Abuja in 2003 and integrated in the Commonwealth fundamental values by the Commonwealth Heads of Government in 2005 and thus in the Charter of the Commonwealth. The Principles provide Commonwealth countries with a set of minimum standards and a roadmap for democracy and good governance by outlining practical ways of implementing the fundamental values of the Commonwealth and enhancing mutual respect between the Executive, Legislature and Judiciary.
The CMJA works closely to promote judicial independence, and cooperates with other organisations in ensuring that “Each Commonwealth Country’s Parliaments, Executives and Judiciaries are the guarantors in their respective spheres of the rule of law, the promotion and protection of fundamental human rights and the entrenchment of good governance based on the highest standards of honesty, probity and accountability.” (Paragraph I of The Principles.)
A colloquium of minsters, parliamentarians, judges, lawyers and legal academics held in Nairobi, Kenya in 2005 led to the production of the “Nairobi Plan of Action for Africa on the Commonwealth (Latimer House) Principles”
A colloquium of ministers, parliamentarians, judges, lawyers and legal academics held in the wings of the Law Ministers Meeting in Edinburgh in 2008 produced the Edinburgh Plan of Action for the Implementation and Development of the Commonwealth Latimer House Principles (“Edinburgh Plan of Action”), the aim of which is to rollout the Principles across the Commonwealth. To date only the Australian Capital Territory Legislature has tried to assess the performance of the three arms of government against the Principles. The CMJA. as the Secretariat for the Latimer House Working Group, provided input to the consultant appointed by the Australian Capital Territory Legislature. It is hoped that the model put forward by the ACT Legislature will be inspirational around the Commonwealth.
In February 2020, the Latimer House Working Group, whose secretariat is based at the CMJA, made a Submission to the Commonwealth of the Whole on the Implementaiton of the Commonwealth (Latimer House Principles) This document has been revised in the light of the impact of Covid 19 on the judiciaries across the Commonwealth and will be submitted to the next Commonwealth of the Whole meeting prior to the next CHOGM.
The Latimer House Working Group also was invited to contribute to a Webinar on Latimer House and the Rule of Law during COVID 19 which was organised by the Commonwealth Secretariat on 7 July 2021.
Latimer House Dialogue Toolkit
The CMJA was contracted by the Commonwealth Secretariat in February 2013 to undertake this work on behalf of the Latimer House Working Group. The Toolkit was completed at the end of January 2014 and published in December 2015. It was launched by the Commonwealth Secretariat in July 2017. The Commonwealth Heads of Government, meeting in London in April 2018 “reaffirmed their commitment to the Commonwealth (Latimer House) Principles on the Accountability of and Relationship between the Three Branches of Government (2003) as an integral part of the Commonwealth’s fundamental political values. Heads requested the Commonwealth Secretariat work in partnership with other Commonwealth organisations in promoting dialogue between the three branches of government, including through the full application of the Latimer House Principles Toolkit, which provides a practical guide to enhancing the separation of powers.“ (Paragraph 13 of the CHOGM Declaration).
The CMJA, and other members of the Latimer House Working Group, are assisting the Rule of Law Section of the Commonwealth Secretariat to roll out the Toolkit. The Toolkit is in two parts: A Practioner’s Handbook and a Facilitator’s Guide.
Submission on Freedom of Expression
“The Commonwealth Principles on freedom of expression and the role of the media in governance”, drafted by the Commonwealth Working Group on Media and Good Governance, with input from the CMJA and other organisations in 2018. In February 2021, the Latimer House Working Group sponsoring organisations (i.e.: CMJA, CPA, CLA and CLEA) put together a joint statement with the Working Group on Media and Good Governance which was submitted to the Rule of Law Section of the Commonwealth Secretariat for consideration by the CLMM who met on 18 February 2021. Whilst this was not placed before the CLMM at the time, it was agreed at the SOLM in February 2021 that a Working Group should be set up to examine the points raised. Freedom of Expression is included in the Commonwealth (Latimer House) Principles. The Latimer House Working Group, through its representatives from the CLA, CLEA and CPA, has continued to support the development of a set of principles by the Commonwealth’s Working Group on Freedom of Expression and welcomes the progress made since February 2021 to review and refine the Principles and commends these to the Commonwealth Law Ministers Meeting.
CAPACITY BUILDING OF THE JUDICIARY
Principles for the Funding and Resourcing of the Judiciary
Following continued concerns about the decreasing funding of judiciaries in the Commonwealth and the “Resolution on the Lack of Sufficient Resources in the Courts which was issued at the CMJA General Assembly in September 2015 in Wellington, New Zealand the CMJA Council in September 2019, tasked the CMJA Secretariat to compile a set of Guidelines for the Funding of the Judiciary. In July 2020, the CMJA issued The Principles on Funding and Resourcing the Judiciary inthe Commonwealth. The Principles were circulated to Chief Justices, Council, CMJA Members in July 2020 and more widely. The CMJA is currently working with the Judiciary of England and Wales and Jamaica to formulate future programmes to provide better assistance to the judiciaries around the Commonwealth in this area.
The CMJA, together with the Judicial Office of England and Wales has been assisting the Gambian Judiciary with the development of Sentencing Guidelines following the work undertaken since February 2018. In July 2020, the CMJA, the Judicial Office of England and Wales and the CMJA held a virtual session with members of the Judiciary of the Gambia to review the sentencing guideline on theft developed in 2019 on theft and assault. It continued to work with the Judiciary of the Gambia on a Sentencing Guideline on Assault as well as the Gambian Sentencing Council which was launched in 2021. The finalised version of the sentencing guidelines were submitted to the Chief Justice of the Gambia. The CMJA and Judicial Office of England and Wales has undertaken training on these guidelines and is continuing to develop additional guidelines with the assistance of the Gambian Sentencing Guidelines Council.
Civil Procedure Law Reforms
Following the Senior Officials of Law Ministers Meeting held in February 2021, the CMJA has been assisting the Commonwealth Secretariat in this area and a number of judges are now assisting with the work being undertaken by the Working Group on Civil Procedure Law Reform of the Commonwealth Secretariat.
Indigenous, traditional, customary justice systems
The CMJA has assisted the International Commission of Jurists (ICJ) in its work on Indigenous, traditional, and customary justice systems over the past two years. It participated in two ICJ Fora for Judges and Lawyers dedicated to the issue as well as providing additional background material for the work that the ICJ has been undertaking in this area.
Foreign Judges working in Domestic Courts
The CMJA was involved in a virtual workshop organised in May 2021 by representatives from the Faculty of Law of Hong Kong University on Foreign Judges in the Domestic Courts. The CMJA Secretary General spoke at the meeting as did a number of Judges from Commonwealth countries. The proceedings of the Conference are due to be published in 2022 by Cambridge University Press.
Since the formulation of the Limassol Conclusions on Combating Corruption in the Judiciary, of 2002, the CMJA has continued to work on combating corruption in the Commonwealth. The CMJA has continued to work with the Commonwealth Secretariat on the Commonwealth Anti-Corruption Benchmarks, in particular in relation to the section on the administration of justice.
The CMJA has continued to work as a partner organisation with the United Nations Office on Drugs and Crime (UNODC) as a partner in the Global Judicial Integrity Network set up under the auspices of the Doha Declaration of 2015 (which re-affirms Member States commitments to “prevent and counter corruption, and to implement measures aimed at enhancing in public administration and promoting the integrity and accountability of our criminal systems, in accordance with the United Nations Convention against Corruption”). Justice Lynne Leitch of Canada is the CMJA’s representative on the Advisory Committee for the GJIN. The CMJA was invited to coordinate a panel session at the GJIN Conference which was held in Doha, Qatar in February 2020 with the International Bar Association (IBA) and the International Association of Judges (IJA). The session was on “Judicial immunity and due process in the determination of allegations of judicial misconduct with consideration of issues of judicial independence” The session chaired by the CMJA President, Justice Charles Mkandawire of Malawi, and included as speakers Justice Lynne Leitch, Judge Gerhard Reissner (Hon. President, IJA) and Sara Carnegie (Director of Legal Projects, IBA). Mark Guthrie (Barrister and former Legal Advisor to the ComSec) was the rapporteur for the session. CMJA Regional Vice President for East, Central and Southern Africa, Justice Patrick Kiage from Kenya, was also a speaker at the Conference and spoke on the Use of Social Media by Judges.
The CMJA also participated in the Fireside Meeting with legal and judicial organisations in October 2020 and was represented at this session by the CMJA Secretary General, Dr Karen Brewer. The CMJA also attended the Third International Meeting of the GJIN in April 2021 and was represented by Justice Lynne Leitch and the CMJA Secretary General.
The CMJA has also provided submissions on a number of documents relating to integrity issues:
- The Use of Social Media by Judges– October 2018 published in November 2019;
- Gender Related Integrity Issues Paper– July 2019.
The CMJA has also provided experts for two working groups:
- The Expert Group on the drafting of a handbook for the judiciary on effective responses to violence against women and girls. The UNODC’s “Handbook For the Judiciary on Effective Criminal Justice Responses to Violence Against Women and Girls” was published in November 2019;
- The Expert Group on Role of Judicial Immunities in Safeguarding Judicial Integrity, August 2019
The CMJA has also provided input to a survey being undertaken on behalf of the Council of Europe about Anti-Corruption Courts and specialised judges.
COVID 19 and its Impact on the Judiciary in the Commonwealth
Since March 2020, the CMJA has been monitoring the impact of COVID 19 on judiciaries, judicial officers and their families across the Commonwealth. In July 2020, it set up a COVID 19 Forum for its members to inform them of how jurisdictions were dealing with all the new issues arising from the pandemic. It has also contributed to a number of webinars hosted by the Commonwealth Secretariat and the Global Judicial Integrity Network (UNODC) and other organisations on the issue.
In November 2020, the CMJA worked with the Standing International Forum on Commercial Courts (SIFoCC) based at the Royal Courts of Justice in London, in the organisation of a virtual seminar on “Commercial Courts- Establishing the New Normal”. Twenty-three judges and magistrates from around the Commonwealth participated in the seminar from The Gambia, New Zealand, India, Malaysia, Tanzania, Australia, Kenya, The East African Court, Singapore, Uganda, Brunei, Maldives, and Cyprus.
JUDICIAL EDUCATION AND TRAINING
The educational element of the CMJA’s work is central to its purposes. The CMJA promotes the provision of judicial education and where this is difficult to provide, by invitation from the host Judiciary, it can call upon its judicial network to assist in the provision of judicial education programmes.
The CMJA has worked to improve standards and strengthen judicial independence across the Commonwealth. This is mainly undertaken through its educational programmes.
The CMJA has undertaken needs assessment missions with the Commonwealth Secretariat sponsored by the then Rule of Law Division, Commonwealth Secretariat. These missions have led to the CMJA has worked with the Commonwealth Secretariat’s Rule of Law Section (formerly the Rule of Law Division) on training programmes for magistrates and judges on sentencing procedures, how to deal with vulnerable adults or children in court, ethical behaviour of judicial officers, gender and human rights and environmental law amongst other topics. The CMJA Director of Programmes, District Judge Shamin Qureshi, has drafted training programmes and facilitated training in Bangladesh, Belize Cameroon, Kiribati, Guyana, the Maldives, Namibia Papua New Guinea and Swaziland for judges and magistrates and the CMJA has run courses in Jamaica and St Lucia on environmental law.
In September 2021, the CMJA organised its first virtual conference attracting 234 delegates from 44 jurisdictions in the Commonwealth. The Theme of the Conference was “Post Pandemic Innovations”.
The CMJA’s 19th Triennial Conference took place in Accra, Ghana from 4-9 September 2022 on the theme: “Access to Justice in a Modern World”. This was the first in person Conference held by the CMJA since 2019. The Conference attracted over 376 delegates from 45 jurisdictions in the Commonwealth.
The CMJA has participated in a number of Judicial education conferences organised by its sister regional organisations, the Caribbean Judicial Officers Association, the East African Magistrates’ and Judges’ Association (EAMJA) at the end of 2019 and contributed to the discussions at these conferences. In November 2021, the CMJA participated in the EAMJA held virtually and was represented at that meeting by its Regional Vice President for East, Central and Southern Africa, Justice Patrick Kiage. In 2022, the CMJA was represented at the EAMJA Conference in Kigali, Rwanda by Immediate Past President Justice Charles Mkandawire and by Mrs Jackline Kagoya, Council Member for East, Central and Southern Africa.
The CMJA has also assisted in the organisation of a number of study visits of Judicial officers from around the Commonwealth to the United Kingdom. The CMJA has been involved in hosting a number of visitors and delegations since the last meeting in liaison with the Judicial Office of England and Wales in particular. A meeting organised by the Judicial Office with Chief Justices from Gambia, Jamaica and Uganda following the Opening of the Legal Year took place on 1 October 2019.
The CMJA organised a virtual meeting of Chief Justices from around the Commonwealth prior to the virtual conference on 12 September 2021. The theme of the meeting was: “The Rule of Law in a Post-COVID 19 era”, with an emphasis on a) Practical ways to tackle the COVID backlogs; and b) Maintaining funded independent judiciaries during and after a pandemic. The Lord Chief Justice of England and Wales hosted the meeting which was attended by 23 Chief Justices from around the Commonwealth.
In 2022, the CMJA hosted the Chief Justice of Kenya and her delegation at the CMJA’s offices and also participated in the meeting organised by the Judicial Office with Chief Justices or their representatives from Ghana, Kenya, Nigeria following the Opening of the Legal Year.
The next CMJA educational Conference will take place from 10-14 September 2023 in Cardiff, Wales. See www.cmja.biz for further details.
In February 2020, following the success of previous courses held since 2017, the CMJA together with the UK Civil Service College (CSC) organised a course on Case Management and Judicial Ethics in London for judicial officers from around the Commonwealth. The CMJA and CSC organised virtual courses in February 2021, July 2021 and March 2022 on the Judicial Ethics and Case Management.
In November 2021, the CMJA and CSC organised a virtual Coroners Course for Judges which was attended by 14 judicial officers from around the Commonwealth.
Since 1998 the CMJA has acted as the repository for Codes of Conduct and Ethics for judicial officers within the Commonwealth which serve as models in the drafting of codes in jurisdictions where they do not as yet exist and current the CMJA has 39 codes of conduct and ethics on file at the CMJA secretariat. It is updating its repository of Ethical codes. It provides access to these codes for judicial bodies and judiciaries from around the Commonwealth who are developing their own codes /guidelines of judicial conduct.
Since its involvement in the Commonwealth’s Working Group on Cybercrime and its involvement in the drafting of the report from the Group, the CMJA has ensured that there is a cybercrime session at its conferences and it continues to ensure that judicial officers are made aware of current cybercrime issues in order for them to better understand this complex new area of law.
The CMJA aims to provide a framework where judicial officers may discuss problems of mutual concern, and by doing so raise judicial awareness and knowledge.
Gender and Human Rights
From the beginning the Association has concerned itself with the rights of women. In 1994 the CMJA issued a Declaration on the Rights of Women. A number of colloquia on the rights of women and the girl-child were held in conjunction with the Gender and Youth Division of the Commonwealth Secretariat and continues to ensure that Gender and Human Rights features on the educational programme of the CMJA Conferences. The CMJA set up a Gender Section, which has been revamped and has produced regular newsletters which appear twice a year and are available (see Gender Section: www.cmja.org/gender-section/
The CMJA has also cooperated with UNODC’s Global Judicial Integrity Network on gender related integrity issues (see Anti-Corruption issues above).
The CMJA also contributed to a Workshop which was organised by the DPP Office of Mauritius for Women’s Day in March 2021. The theme of the Workshop was Human Trafficking. Justice Jackie Kamau of Kenya, then President of the Kenya Magistrates’ and Judges’ Association participated in this workshop on the recommendation of the Regional Gender Section representative on behalf of the CMJA.
The CMJA, together with the CLA and the Rule of Law Division of the Commonwealth Secretariat, drafted a Gender and Human Rights Toolkit for use by paralegals, lawyers and judicial officers of the Commonwealth. This is currently being updated.
Rights of the Child
The rights of the child and juvenile justice have featured for many years on the conference programmes the CMJA runs. In 2009, The CMJA and UNICEF adopted a The Providenciales Declaration on Justice for the Next Generation: The Promotion and Protection of the Rights of Children in contact with the Law in contact with the Law in order “to encourage cooperation in the establishment and enhancement of child justice systems in line with international standards across the Commonwealth”. The CMJA has continued to work on the promoting better knowledge with the Commonwealth judiciaries of the rights of the child.
Socio, economic and cultural rights
All Commonwealth countries are affected by economic globalisation and there is a need for more international co-operation between judiciaries to deal with the many problems which arise as a result. It continues to encourage training on environmental law.
How to deal with domestic violence and abuse has continued to be a central theme for training and for the CMJA educational Conferences.
UN Guiding Principles on Business and Human Rights
The CMJA has been exploring projects in order to develop judicial training in relation to the above Guiding Principles. It had been hoped to undertake a preliminary pilot scheme in Kigali in the wings of the Commonwealth Heads of Government Meeting (CHOGM) but this was postponed for COVID 19 reasons. In July 2021, with the assistance of the Chief Justice of Rwanda and the Director of the Judiciary in Rwanda, the CMJA together with the Standing International Committee of Commercial Courts (SIFoCC) organised a webinar on the UN Guiding Principles. In February 2022, the CMJA and SIFoCC held an awareness session on the issue for the High Court and Supreme Court Judges of the Gambia.
THE IMPLEMENTATION OF THE COMMONWEALTH FUNDAMENTAL VALUES
Just as the Commonwealth Parliamentary Association represents the Parliaments of the Commonwealth, so the CMJA represents the third branch of power within the Commonwealth, the Judiciary. However, the Commonwealth has not always considered the importance of the Judiciary as leaders who are able to influence civil society.
The CMJA has been consulted by a number of jurisdictions on Commonwealth judicial issues: such as procedural reforms, impact of constitutional changes on judicial independence, and the impact of legislative reform on courts etc….
The CMJA is a valuable network for our members who often face similar problems and great pressures, albeit under widely varying personal circumstances. The network is maintained and developed through our regional, triennial and other conferences and through the Commonwealth Judicial Journal, our regular newsletter and the promotion of email and other forms of electronic communication.
The CMJA works closely with non-governmental organisations and inter-governmental organisations in the promotion of the fundamental values of the Commonwealth, including the UNODC, the UN Human Rights Council, the UN Special Rapporteur on the Independence of Judges and Lawyers, the International Committee of the Red Cross and Red Crescent and the International Commission of Jurists to advance good governance and the rule of law across the Commonwealth.
OTHER ACHIEVEMENTS INCLUDE
- The contribution to the April 1996 Commonwealth Law Ministers Meeting which established a new Ministerial Working Group on the Independence of the Judiciary in the Commonwealth and to the subsequent Commonwealth Law Ministers Meetings and the continued liaison with the Legal and Constitutional Affairs Division of the Commonwealth Secretariat.
- The Victoria Falls Proclamation 1994 approved by the General Assembly of the CMJA reaffirming the principles of the Independence of the Judiciary and the Rule of Law as a reaffirmation of Members’ commitment to the objectives of the Association.
- The participation, as a accredited Commonwealth Association in the activities surrounding the Commonwealth Heads of Government Meeting in New Zealand, 1995 and Scotland, 1997, Durban 1999; Abuja 2003; Malta 2005, Malta 2015 London 2018.
- The granting of Royal Patronage to the CMJA by Her Majesty The Queen, Head of the Commonwealth.