PARLIAMENTARY

SUPREMACY AND
JUDICIAL INDEPENDENCE:
A COMMONWEALTH APPROACH

CP
Cavendish
Publishing
Limited

London • Sydney
 PARLIAMENTARY
SUPREMACY AND
JUDICIAL INDEPENDENCE:
A COMMONWEALTH APPROACH

Proceedings of the Latimer House

Joint Colloquium, June 1998

Edited by
John Hatchard
General Secretary, Commonwealth Legal
Education Association
and
Peter Slinn
Vice President, Commonwealth Legal
Education Association

CP
Cavendish
Publishing
Limited

London • Sydney
First published in Great Britain 1999 by Cavendish Publishing Limited,
The Glass House, Wharton Street, London WC1X 9PX, United Kingdom
Telephone: + 44 (0) 171 278 8000 Facsimile: + 44 (0) 171 278 8080
E-mail: [email protected]
Visit our Home Page on http://www.cavendishpublishing.com

© 1999 The Commonwealth Lawyers’ Association, the Commonwealth

Legal Education Association, the Commonwealth Magistrates’ and Judges’
Association and the Commonwealth Parliamentary Association

Copyright is retained by the four sponsoring associations and all rights are
reserved but the Guidelines may be reproduced providing the source of the
documents is acknowledged.

Save for the Guidelines, no part of this publication may be reproduced, stored
in a retrieval system, or transmitted in any form or by any means, electronic,
mechanical, photocopying, recording or otherwise, without the prior
permission of the publisher and copyright owners.

Any person who infringes the above in relation to this publication may be
liable to criminal prosecution and civil claims for damages.

British Library Cataloguing in Publication Data. A catalogue record for this

book is available from the British Library.

ISBN 1 85941 523 7

Printed and bound in Great Britain

 PREFACE

A Joint Colloquium on Parliamentary Supremacy and Judicial Independence ...

Towards a Commonwealth Model was held at Latimer House in the United
Kingdom, from 15 to 19 June 1998. Over 60 participants attended,
representing 20 Commonwealth countries and three overseas territories. This
was the first Commonwealth gathering to bring together at senior level
parliamentarians, including those holding ministerial office, with judges, legal
practitioners and legal academics. The objective was to promote a dialogue
between those at the cutting edge of good governance issues with the specific
aim of drafting guidelines as to best practice with regard to relations between
the executive, parliament and the judiciary in the context of the Harare and
Millbrook commitments.
That objective was achieved during three days and nights of intensive
discussion. The Guidelines reproduced herein are not intended to be yet
another high-sounding declaration of good intentions but an operational
manual of good practice which can be considered for implementation in every
Commonwealth jurisdiction. The principles outlined in the Guidelines have
been supported by the member associations concerned in their dealings with
each other.
Accordingly, they will be submitted for consideration to the
Commonwealth Law Ministers at their Meeting in May 1999 and, thence, to
the Commonwealth Heads of Government Meeting. Thus, the Guidelines
could form an integral part of Commonwealth processes for monitoring
compliance with the Harare Principles.
In addition, a judge, parliamentarian or legal practitioner or any other
member of civil society faced with a breach of the Guidelines will be able to
invoke them against abuses.
The Guidelines themselves are set out on page 17 below, as drafted by the
participants during the Colloquium.
The Colloquium was sponsored by the Commonwealth Lawyers’
Association, the Commonwealth Legal Education Association, the
Commonwealth Magistrates’ and Judges’ Association and the
Commonwealth Parliamentary Association. The gathering would not have
been possible without the generous financial support of the Commonwealth
Foundation, the Commonwealth Secretariat and the United Kingdom Foreign
and Commonwealth Office. The sponsoring Associations would also like to
record their deep appreciation of the tireless efforts of Shem Baldeosingh,
Karen Brewer, Meenakshi Dhar, Art Donahoe, John Hatchard, Michael
Lambert, Helen Potts (nee Ramsey) and Peter Slinn in providing the ad hoc
secretariat.
London
March 1999

v
 CONTENTS

Preface v

1 REPORT OF THE CONFERENCE PROCEEDINGS 1

Peter Slinn

INTRODUCTION 1
THE STRUCTURE OF THE COLLOQUIUM 3
SUMMARY OF DISCUSSIONS 4
PLENARY 1: PRESERVING JUDICIAL AND
PARLIAMENTARY INDEPENDENCE 5
PLENARY 2: PARLIAMENT AND THE JUDICIARY I 7
PLENARY 3: PARLIAMENT AND THE JUDICIARY II 9
PLENARY 4: ROLE OF NON-JUDICIAL AND
NON-PARLIAMENTARY
INSTITUTIONS 11
PLENARY 5: RELATIONSHIPS WITH THE EXECUTIVE 13
PLENARY 6: JUDGES, PARLIAMENTARIANS
AND CIVIL SOCIETY 14
PLENARIES 7 AND 8:
ADOPTION OF DRAFT GUIDELINES 15

2 LATIMER HOUSE GUIDELINES FOR

THE COMMONWEALTH 17

PREAMBLE 17
PRINCIPLES 18
GUIDELINES 18

vii
 Parliamentary Supremacy and Judicial Independence

3 PARLIAMENTARY SOVEREIGNTY AND JUDICIAL

INDEPENDENCE: KEYNOTE ADDRESS 29
Lord Irvine of Lairg

4 THE CONSTITUTION, PARLIAMENT

AND THE COURTS: TOWARDS A
COMMONWEALTH MODEL 35
James S Read

5 THE JUDICIARY: QUALIFICATIONS,

TRAINING AND GENDER BALANCE 39
The Hon Justice Dame Silvia Cartwright

6 THE INDEPENDENCE OF THE JUDICIARY

WITH SPECIAL REFERENCE TO PARLIAMENTARY
CONTROL OF TENURE, TERMS AND
CONDITIONS OF SERVICE AND
REMUNERATION OF JUDGES: JUDICIAL
AUTONOMY AND BUDGETARY CONTROL
AND ADMINISTRATION 47
The Hon Chief Justice AR Gubbay

7 PARLIAMENTARY SOVEREIGNTY AND

‘JUDGE-MADE’ LAW; JUDICIAL REVIEW
OF LEGISLATION 53
The Hon Justice Pierré JJ Olivier

8 BILLS OF RIGHTS AND CONSTITUTIONAL

INTERPRETATION 59
MJA Cooray

viii
 Contents

9 PARLIAMENTARY PRIVILEGE
VERSUS THE COURTS 65
Judge KM Nagabhushan Rao

10 MAINTAINING JUDICIAL INDEPENDENCE

IN A SMALL JURISDICTION 73
The Hon Chief Justice Derek Schofield

11 ROLE OF NON-JUDICIAL AND

NON-PARLIAMENTARY INSTITUTIONS:
THE PRACTISING LEGAL PROFESSION 81
Cyrus V Das

12 PARLIAMENTARIANS, NATIONAL INSTITUTIONS

AND THE IMPLEMENTATION OF THE
HARARE COMMONWEALTH DECLARATION 89
John Hatchard

13 JUDICIAL REVIEW OF EXECUTIVE ACTION:

GOVERNMENT UNDER THE LAW 103
Rodger MA Chongwe, SC

14 JUDGES AND PARLIAMENTARIANS:

THE PUBLIC PERCEPTION 111
Colin Nicholls, QC

15 FREE SPEECH: PARLIAMENTARY PRIVILEGE

AND THE SUB JUDICE RULE 117
Rt Hon Paul East, QC, MP

ix
 Parliamentary Supremacy and Judicial Independence

16 JUDGES AND PARLIAMENTARIANS:

THE PUBLIC PERCEPTION 123
Justice Rasheed A Razvi

APPENDICES:

1 WORKING GROUP REPORTS 131

2 [A DRAFT] STATEMENT ON FREEDOM OF EXPRESSION

FOR THE COMMONWEALTH 141

3 LIST OF PARTICIPANTS 149

4 BIOGRAPHIES OF SESSION LEADERS

AND CONTRIBUTORS 155

5 THE FOUR SPONSORING ASSOCIATIONS 165

x
 CHAPTER 1

REPORT OF THE CONFERENCE PROCEEDINGS

Peter Slinn

INTRODUCTION

The genesis of the Joint Colloquium lay in the shared concern of a number of
Commonwealth organisations about the effective implementation of the good
governance, democracy and human rights agenda embodied in the Harare
Declaration. These matters were of particular concern to the sponsoring
organisations as being representative of those professions directly involved in
the processes whereby these benefits are secured or imperilled – judges (the
CMJA), parliamentarians (the CPA), practising lawyers (the CLA) and legal
educators (the CLEA).
The Commonwealth has acted at inter-governmental level to promote and
secure the Harare Principles, most notably through the Millbrook
Commonwealth Action Programme including the establishment of the
Commonwealth Ministerial Action Group (CMAG) and through the work of
the Commonwealth Secretariat. 1 Specific initiatives have included the
convening, under the aegis of the Secretariat, of a working group on the
independence of the judiciary due to report in 1999. Training programmes on
good governance, administrative law and human rights have continued under
the direction of the Legal and Constitutional Affairs Division of the
Secretariat.2
Parliamentarians and all three branches of the legal profession have been
directly concerned with the promotion and fulfilment of the Harare
commitments.3 The CMJA has run training seminars on human rights themes
and is developing a code of judicial ethics;4 the CPA has conducted training
seminars for parliamentarians with particular emphasis on the needs of

1 Report of the Commonwealth Secretary General, 1997, pp 20–21.

2 See, in particular, the ‘Bangalore’ series of judicial colloquia and Good Government and
Administrative Law, Commonwealth Secretariat, 1996.
3 This is reflected in the objectives of the four sponsoring organisations, including pursuit
of the positive ideals of parliamentary democracy (CPA), promoting high standard of
legal education (CLEA), the maintenance and promotion of the rule of law throughout
the Commonwealth by ensuring that the people of the Commonwealth are served by an
independent and efficient legal profession (CLA) and to advance the administration of
law by promoting the independence of the judiciary (CMJA).
4 Report of the Eleventh Triennal Conference, Cape Town, 25 October–1 November 1997.

1
 Parliamentary Supremacy and Judicial Independence

transitional democracies; the CLA has provided training seminars for

developing Commonwealth practitioners; and the CLEA is developing model
curricula to facilitate the teaching of human rights and rule of law issues to the
next generation. The CLA, CPA and CLEA have also sponsored the
Commonwealth Human Rights Initiative (CHRI) which has been directly
involved in monitoring Commonwealth countries where abuse of the Harare
Principles has been threatened or has occurred, including sending missions to
Nigeria and to Zambia.5
In the light of all this experience, the sponsoring organisations identified a
need for a quite new kind of Commonwealth gathering, building on existing
discrete initiatives of the type referred to above, but quite distinct from
training workshops, academic conferences and deliberations within the
confines of each professional cadre. The idea was to bring together for the first
time at senior level, parliamentarians, including those holding ministerial
office, with judges, legal practitioners and legal academicians with the object
not only of promoting a dialogue between those at the cutting edge of good
governance issues but with the specific aim of drafting guidelines as to best
practice with regard to relations between the executive, parliament and the
judiciary in the context of the Harare and Millbrook commitments. That
objective was achieved during three days and nights of intensive discussion.
The Guidelines reproduced herein are not intended to be yet another high-
sounding declaration of good intentions but an operational manual of good
practice capable of implementation in every Commonwealth jurisdiction. The
principles outlined in the Guidelines have been supported by the member
associations concerned in their dealings with each other. Also, they will be
submitted for consideration by Commonwealth Law Ministers at their May
1999 meeting and following that to the Commonwealth Heads of Government
Meeting. Thus, the Guidelines could play a formal part in the process of
implementation and of monitoring compliance with the Harare Principles. In
this way, a judge, parliamentarian or legal practitioner or any other member
of civil society faced with a breach of the Guidelines will be able to invoke
them ‘horizontally’ against another professional or ‘vertically’ against abuse
by governmental or other authority. All Commonwealth governments and
relevant elements in civil society will be asked to accept a monitoring
procedure as indicated in paragraph IX of the Guidelines which would
include the power to solicit reports on compliance from each Commonwealth
member. It would be possible to utilise the existing CMAG machinery by
expanding its remit to include the monitoring of compliance with the
Guidelines. CMAG’s findings, which would be based on reports from each
Commonwealth member and on submissions through the sponsoring

5 Sadly, there is no reason to change the verdict of the CHRI Advisory Group, Put Our
World to Rights, in August 1991: ‘On the whole, [the Commonwealth’s] members’ record
on human rights is poor’, p 6.

2
 Report of the Conference Proceedings

organisations, would then be considered as a regular part of the CHOGM

agenda. This process would eliminate a major weakness of the current
Millbrook Programme of Action, which so far has limited itself to ‘dealing
with serious and persistent violations’ of the Harare Principles, in effect
confining CMAG’s remit to Commonwealth countries which were then under
military rule.
The Latimer House system as proposed is designed to provide positive
support for the achievement and maintenance of good practice in
implementing the Harare Declaration. However, there is overwhelming
evidence of breaches of the Harare Principles in many Commonwealth
jurisdictions which ostensibly maintain a democratic system under the rule of
law.6 This system will also empower principal elements of civil society in all
Commonwealth countries to participate in the compliance process.
The sponsoring organisations will only have realised their aim if the
Guidelines become a living instrument of good governance and the rule of
law and a fresh blueprint for the realisation of the ideals of the modern
Commonwealth.

THE STRUCTURE OF THE COLLOQUIUM

The meeting was structured so as to ensure an informed analysis of what were

perceived to be the core issues at stake in achieving satisfactory and balanced
relationships between the executive, parliament and the judiciary.7 The first
plenary session examined ways of protecting judicial and parliamentary
independence; plenaries two and three examined relations between
parliament and the judiciary; plenary four reviewed the role of non-judicial
and non-parliamentary institutions such as the practising legal profession and
national human rights institutions; plenary five scrutinised the delicate
relations between the executive and the parliamentary and judicial arms; and
plenary six looked at the role of civil society, the perceptions of the public at
large and the vital role of the media in ensuring transparency. The plenary
sessions were supported by a series of workshops which reviewed sections of
the draft guidelines that were adopted in plenary at the conclusion of the
Colloquium. The Guidelines are therefore the product of a genuinely
participatory process involving an emerging consensus harmonising the
differing concerns of judges, parliamentarians and ministers. Thus, the
colloquium was in marked contrast to international gatherings where the final

6 However, in the year following the Edinburgh Declaration, no situations in other

Commonwealth countries were brought to the attention of CMAG as envisaged by
paragraph 20 of the Edinburgh Communiqué.
7 The list of participants is found in Appendix 3.

3
 Parliamentary Supremacy and Judicial Independence

communiqué exists in draft form in advance and the actual input of delegates
is in practice severely restricted.8

SUMMARY OF DISCUSSIONS

The keynote address was delivered by Lord Irvine of Lairg, Lord High
Chancellor of Great Britain.9 In the course of his speech, he defended the
British practice of using judges to conduct inquiries into matters of the highest
political sensitivity. However, he also staunchly defended the British
application of the doctrine of separation of powers in the context of
parliamentary sovereignty:
There is no question of our judges misusing the opportunities presented by
judicial review in an attempt to establish themselves as a power to rival the
sovereignty of parliament. In the United Kingdom, the executive, legislative
and judicial branches of government are not equal and co-ordinate. Parliament
is the senior partner.10
This position would not be changed fundamentally by the coming into force
of the Human Rights Act. 11 The lack of any jurisdiction to strike down
incompatible primary legislation would not generally impair the ability of
courts to ensure the protection of human rights. Noting that the position in the
United Kingdom differed from that in the United States and Canada,12 Lord
Irvine observed that each country must find a solution which is sensitive to its
domestic culture, achieving an effective balance between the powers of the
judges and the powers of government and parliament.13 This indeed neatly
summed up the ambitious task which the sponsors of the colloquium had set
the assembled delegates.
In discussion following the Lord Chancellor’s address, speakers from a
wide range of jurisdictions emphasised the limitations on the doctrine of
parliamentary sovereignty, which in developing Commonwealth countries
was said to mask the reality of executive power. Parliament was often
marginalised and its proceedings ill reported and seen as remote from the
people. The Lord Chancellor’s elevation of parliament as the ‘senior partner’

8 This meant that the midnight oil was burnt throughout the colloquium and tribute
should be paid to the heroic staff of the sponsoring organisations. They made possible
the continuous drafting process, without the logistical support that other high-level
international conferences normally enjoy.
9 Below, p 29.
10 Below, p 31.
11 At the time of Lord Irvine’s address, the Bill was in the committee stage in the House of
Commons. It received the Royal Assent in November 1998, but will not come into force
until 2000.
12 And many other Commonwealth countries represented at the Colloquium.
13 Below, p 33.

4
 Report of the Conference Proceedings

was criticised on the basis that the relationship between the executive,
judiciary and parliament was that of an equilateral not an isosceles triangle.
Indeed, judges might be called upon to make difficult decisions which a
popularly elected legislature might be reluctant to make.

PLENARY 1
PRESERVING JUDICIAL AND PARLIAMENTARY
INDEPENDENCE

The first plenary session, chaired by Mr Rodney Hansen, QC (New Zealand,

CLA), was addressed by Professor James Read (United Kingdom, CLEA),14
The Hon Justice Dame Silvia Cartwright (New Zealand, CMJA),15 The Hon
Chief Justice Anthony Gubbay (Zimbabwe, CMJA),16 and Ms Susan Barnes,
MP (Canada, CPA).
In providing an overview of the respective roles of parliament and the
judiciary, Professor Read reminded participants that throughout the
Commonwealth these institutions were established by written constitutions
which were subject to judicial interpretation. Even in the United Kingdom,
current changes amounted to the creation of a constitutional edifice
expanding the judicial role. Devolution of government, the Human Rights Act
and the subjection of the ‘sovereign’ parliament to the institutions of the
European Union now gave British judges for the first time power to examine
the validity of Acts of parliament. The ‘Westminster Model’ of government,
still dominant in the Commonwealth, denied the ‘separation of powers’, being
based upon the close integration of legislature and executive. Thus, in the
United Kingdom the Lord Chancellor himself was at the apex of the executive,
legislative and judicial authority. The essential separation of powers was seen
in the independence of the judiciary, which required constant re-assertion in
terms of selection, appointment and tenure, provision of resources,
accessibility and consequent authority. The freedom of parliament, including
that of individual members, was significant but in many states parliaments
were weak, lacking the resources adequately to enforce government
accountability.
Dame Silvia Cartwright drew attention to the pressures to which judicial
independence was subjected, not only from governmental and parliamentary
organs but also from media lobby groups and public prejudices. However,

14 ‘The Constitution, Parliament and the Courts’, below, p 35.

15 ‘The Judiciary: Qualifications, Training and Gender Balance’, below, p 39.
16 ‘The Independence of the Judiciary with special reference to parliamentary control of
tenure, terms and conditions of service and remuneration of judges, judicial autonomy
and budgetary control and administration’, below, p 47.

5
 Parliamentary Supremacy and Judicial Independence

judicial independence was essential not for the benefit of judges themselves
but for the community as a whole. Qualification and training of judges must
be designed to remove gender imbalance and other obstacles to social
awareness and the elimination of bigotry and prejudice.
Chief Justice Gubbay sketched the qualities required of a judge to perform
his or her task:
It demands wisdom as well as knowledge, conscience as well as insight, a
sense of balance and proportion ...
These qualities would be imperilled by failure to protect judges from political,
economic or other influences. The means of such protection included
appropriate constitutional provisions relating to appointment and security of
tenure, financial independence, and adequate financial resources for judicial
purposes, including the ability to travel to consult with judges in other
countries:
The unity of judges in different jurisdictions is most essential for securing the
independence of domestic judiciaries.17
Merely to lay down principles of judicial independence was not enough. Their
implementation required an awareness on the part of society as a whole so
that public opinion would be mobilised in defence of judicial independence in
the face of any threat from the executive.
From the standpoint of a serving parliamentarian, Ms Barnes admitted
that the reputation of parliamentarians had declined owing to failure to
maintain links with the people. She reviewed a number of devices affecting
the independence of MPs. She was opposed to the system of recall of MPs,
which in British Columbia required only a 40% vote on the part of the
electorate. She also referred to the role of the caucus, which could play a key
role in assuring the responsibility of the executive to members of parliament.
In discussion, reservation was expressed about the role of the caucus as a
possible threat to parliamentary supremacy, particularly in states where one
party held a dominant position in the legislature. One participant challenged
the assumption that the influence of judges on the constitution was inevitably
benign by observing that the judiciary itself might constitute a threat to the
constitution by usurping the legislative function. One Supreme Court, it was
alleged, had taken to redrafting legislation and adopting so pro-active an
approach as to amount arguably to an abuse of judicial independence.
There was general agreement that more women judges and more women
parliamentarians were needed. For example, very few Commonwealth
countries have appointed women judges to their courts of final appeal.18

17 Below, pp 47, 50.

18 It might be observed that the highest court in the United Kingdom has never had a
woman member.

6
 Report of the Conference Proceedings

Some subtler threats to the independence and impartiality of judges were

discussed, such as the giving of ‘plum jobs’ to judges on retirement, the
anticipation of which might make a judge reluctant to challenge the executive.

PLENARY 2
PARLIAMENT AND THE JUDICIARY I

The second plenary session, chaired by Professor Dawn Oliver (United

Kingdom, CLEA), was addressed by Hon Kamla Persad-Bissessar, MP
(Trinidad and Tobago, CPA), The Hon Justice Pierré Olivier (South Africa,
CMJA),19 Mr Nana Addo Dankwa Akufo-Addo, MP (Ghana, CPA) and Shri
Soli Sorabjee (India, CLA).
Ms Persad-Bissessar, in discussing the law-making process, emphasised
the importance of the revising function of a second chamber. Such a chamber
was often better equipped than a partisan lower house to give serious
consideration to highly technical legislation such as that required to comply
with international agreements in the field of world trade.
Judge Olivier’s analysis of parliamentary sovereignty and of the judicial
role in the law-making process was tempered by the ‘horrible’ experience of
apartheid South Africa. This experience led Judge Olivier to be highly critical
of the ‘Westminster’ model of parliamentary sovereignty, which, however
well it might have served Britain, had proved powerless to protect the people
of South Africa from unjust laws passed by a parliament which was a rubber
stamp of a tyrannical executive:
... apartheid could never have come into being without the system of
parliamentary sovereignty ...20
Judge Olivier painted a vivid picture of the intolerable position in which
South African judges were placed in having to apply oppressive laws in
relation to which the possibility of judicial review was carefully excluded.
Even judicial review of executive action was emasculated by laws conferring
specific and draconian powers upon the executive. Judge Olivier contrasted
this grim scenario with the situation brought about by the ‘miracle of
transition’ in South Africa. Under the interim and permanent constitutions,
judges enjoy powers of judicial review of both executive action and legislation
which in the latter case has been used to outlaw the death penalty and the
reverse onus of proof in criminal trials. The courts, particularly the new
Constitutional Court, have made frequent use of international and
comparative precedents:

19 ‘Parliamentary Sovereignty and Judge-Made Law’, below, p 53.

20 Below, p 55.

7
 Parliamentary Supremacy and Judicial Independence

Where judges formerly were reduced to virtually powerless interpreters of

rigid apartheid constitutions, they have now achieved their true function and
status: they have become co-architects, and not mere bricklayers, of a new and
proud society.21
Nana Akufo-Addo addressed the basic question of the quality of the law-
making process. Can judges and parliamentarians do better? Laws needed to
be clear, simple, relevant and consistently applied. In developing countries,
parliamentarians found it difficult, in part through lack of resources, to
function effectively in improving legislation through committee scrutiny
during the passage of Bills. A fresh approach to the interpretation of statutes
was required so as to permit reference to parliamentary debates.22
He added that another problem faced in many developing countries,
including Ghana, was the inaccessibility to much of the population of the
official language in which the laws were written. At least 40% of the
population could not understand the official language. Nana Akufo-Addo
shared Judge Olivier’s view of the pernicious impact of the doctrine of
parliamentary sovereignty which had also served Ghana ill. However, he was
inclined to lay heavy responsibility on the judges themselves, who, even when
equipped with full power of review, had failed to use it to limit preventive
detention and to strike down other laws affecting individual liberty.23
Soli Sorabjee spoke from his perspective as Attorney General of India.
Under the Constitution, the Attorney General was independent of
government but had the right to address both houses of parliament and their
committees. He went on to explain the role of the Attorney General in
advising on statutory interpretation, the transference of cases to the Supreme
Court and the lodging of contempt petitions (which required the consent of
the Attorney General), where there was danger of the misuse of such petitions
to shield errant judges. The Attorney General also had an important role in
relation to the extensive Indian process of ‘public interest litigation’ in
ensuring that there was a genuine issue to be tried.24
In discussion, various issues relating to judicial and parliamentary
independence were raised. It was suggested that it was helpful to approach
the question of the relationships between the executive, parliament and

21 Below, p 57.
22 The approach now adopted in the United Kingdom by the House of Lords in Pepper v
Hart [1992] 2 WLR 1032; [1993] 1 All ER 1. See, also, p 120, below.
23 He gave as an example the recent decision of the Supreme Court of Ghana (Republic v
Tommy Thompson Books Ltd [1996–97] Supreme Court of Ghana Law Reports 804),
rejecting a challenge to the constitutionality of criminal libel laws.
24 ‘Public interest litigation’ is a remarkable phenomenon of Indian jurisprudence
whereby the normal rules of standing are set aside in order to permit access to the
courts in the public interest on behalf of disadvantaged groups. The judges play a
notably pro-active role, even exercising an ‘epistolary’ jurisdiction in respect of issues
raised by letter and acting on their own motion. Hence the need for the Attorney
General’s role in vetting applications.

8
 Report of the Conference Proceedings

judiciary as one of separation of functions rather than of powers, there being a

common interest in co-operating to eliminate, for example, difficulties in the
application of statutes, a process in which the practising legal profession
should be actively involved.

PLENARY 3
PARLIAMENT AND THE JUDICIARY II

The theme of parliament and the judiciary was continued in the third plenary
session, chaired by Ms Kathleen Keating (Canada, CLA) and addressed by
Professor Anton Cooray (Sri Lanka, CLEA), The Hon Mr Justice KM
Nagabhushan Rao (India, CMJA), The Hon Mr Justice John Dowd, AO
(Australia, CMJA) and The Hon Chief Justice Derek Schofield (Gibraltar,
CMJA).
Professor Cooray raised a number of complex questions relating to rules of
interpretation of constitutional provisions protecting fundamental rights,
particularly those affecting the relationship between judges and
parliamentarians. 25 Under the now much criticised but still staunchly
defended system of parliamentary supremacy, judges are precluded from
questioning the validity of legislation. As the Lord Chancellor reaffirmed in
his opening address, it was vital that the courts should not become involved
in a process of policy evaluation. Where the courts did have the constitutional
power of review over legislation, judges were inevitably called upon to make
value judgments, particularly where rights were in conflict. In giving a
generous and purposive interpretation to Bills of Rights clauses so as to
ensure the full measure of protection for individual rights, judges should
avoid usurping the function of the legislature. Inevitably, judges would be
criticised for lack of or for excessive boldness. This issue raised questions
regarding the qualification and training of judges to perform this delicate
balancing exercise.
Judge Rao tackled another highly sensitive issue, the boundaries between
the jurisdiction of the legislature and the courts in dealing with corrupt
practices involving members of parliament. Should such matters be dealt with
by parliament as a matter of privilege or should the courts have a role? Judge
Rao’s paper examines in some detail the recent seminal Indian case of PV
Narasimha Rao v State26 in which the constitutional bench of the Supreme
Court considered bribery charges against a sitting prime minister. By a 3-2

25 ‘Bills of Rights and Constitutional Interpretation’, below, p 59.

26 1998 (4) SC Cases 626 (the JMM Bribery case). See ‘Parliamentary Privilege versus The
Courts’, below, p 65. For an analysis preferring the majority view, see Siddharth
Bhatnagar, ‘Bribery and immunity in Parliament – an Indian perspective’ (1998) 12
Commonwealth Judicial Journal No 4, pp 31–33.

9
 Parliamentary Supremacy and Judicial Independence

majority, the Supreme Court found that a member of parliament was a ‘public
servant’ for the purposes of prevention of corruption legislation. However, the
court upheld the immunity of members of parliament from criminal
prosecution in respect of the offer and acceptance of a bribe for the purpose of
speaking or giving his or her vote in parliament. In the view of Judge Rao, the
Supreme Court missed the opportunity to resolve the question of criminal
liability involving bribery of members of parliament.
Judge Dowd discussed various ways of promoting judicial and
parliamentary ethics. The Australian Judicial Commission had a disciplinary
section, but there was a need to create a culture amongst judges of seeking
advice on ethical issues. In New South Wales, there existed an independent
commission against corruption and a requirement of disclosure of interests on
a public register. Clearer guidelines were needed particularly on subtler forms
of corruption. Parliamentary ethics advisers required statutory protection in
respect of matters disclosed to them.
Chief Justice Schofield spoke of the particular problems of the judiciary in
small jurisdictions such as the Cayman Islands and Gibraltar.27 Where an
appointee was drawn from a small local community, there was inevitably a
problem of perception of bias in the light of former known allegiances.
However, the appointment of judges from overseas on contract also posed
problems, particularly in relation to judicial independence, which were not
confined to small jurisdictions:
A fixed term contract and security of tenure for judges do not reconcile,
because a judge does not know whether unpopular decisions are going to
rebound upon him or her when the time comes for renewal of contract.28
The solution might lie in stronger contractual or statutory protection for
judges seeking renewal of their terms. Renewal should be automatic, unless
misconduct or incapacity was shown or perhaps where a suitable local
candidate was available to replace an overseas judge.29 Other problems which
particularly affected judges in small jurisdictions included those of isolation:
judges and their families having to maintain a social reserve which led to a
very lonely existence.
In discussion, there was support for disclosure of assets as a means of
avoiding corruption. It was also noted that regional co-operation could assist
the problem of assignment of judges in small jurisdictions. In the Eastern
Caribbean, for example, it was possible to avoid the assignment of a person
local to a particular small island to serve there as a judge.30

27 ‘Maintaining Judicial Independence in a Small Jurisdiction’, below, p 73.

28 Below, p 75.
29 Below, p 76 and see Guidelines, II, 1, below, p 20.
30 See Guidelines, V, 1, p 23.

10
 Report of the Conference Proceedings

PLENARY 4
ROLE OF NON-JUDICIAL AND NON-PARLIAMENTARY
INSTITUTIONS

The fourth plenary session, chaired by Sir Philip Bailhache (Jersey, CPA), was
addressed by Dato’ Cyrus Das (Malaysia, CLA), John Hatchard (United
Kingdom, CLEA) and Mr Wasim Sajjad (Pakistan, CPA).
Cyrus Das discussed the role of the practising legal profession in
promoting the rule of law. He emphasised the inter-relationship between the
practising profession and the judiciary.31 An independent judiciary could not
exist without an independent bar. The legal profession had a complex role in
society and responsibility to identify the shortcomings in legislation or in
government action from the standpoint of civil rights:
The stand it takes may not be popular and may well be misunderstood. But it
does not behove a Bar Council to take a popular stance as opposed to a stand
that is in accordance with justice ... It falls upon the Bar Association to advise
and comment on legislation touching the legal, personal and property rights of
citizens and their liberties ... This function cannot be discharged meaningfully
unless the Bar is independent and is free to comment without fear of reprisal or
penalty.32
An independent legal profession was also vital to economic progress and
development:
Unless investors are confident that they may resort to an independent and
non-aligned Bar for advice and representation in their dispute with any party,
no matter how powerful or well connected they may be, investors’ confidence
is likely to deteriorate.33
John Hatchard’s presentation examined the role of national independent
institutions (offices of the ombudsman and human rights commissions) in
strengthening the democratic framework in Commonwealth jurisdictions.34 A
key element in this process was the development of an effective partnership
between parliament and the national institutions. Parliament had a crucial
responsibility in ensuring the independence and effectiveness of these bodies
in relation to appointments, funding and other resources. The national
institutions in their turn should have formal responsibility to parliament and
could, and perhaps should, play a major role in advising and providing
information for parliamentarians in crucial areas where parliamentarians,
particularly in developing countries, appear to operate in an ‘information

31 ‘The Practising Legal Profession’, below, p 81.

32 Below, p 85. See Guidelines,VIII, 3, p 27.
33 Below, p 86.
34 ‘Parliamentarians, National Institutions and the Implementation of the Harare
Commonwealth Declaration’, below, p 89.

11
 Parliamentary Supremacy and Judicial Independence

vacuum’. He drew attention to an example from Zimbabwe where it appeared

that an important constitutional amendment affecting human rights had been
rushed through parliament without adequate explanation to members:
This example emphasises the danger of legislation being passed in
circumstances where parliamentarians are seemingly not fully informed of its
implications. It follows that MPs must have access to objective and
independent information and advice.35
Human rights commissions were ideally suited to providing information
regarding compliance by the state with international human rights obligations
and notice of local human rights violations. The ‘partnership’ approach of the
New Zealand Human Rights Commission provided an excellent model for the
development of the relationship between parliamentarians and national
institutions.36 The proposed Guidelines should reflect these concerns.37
Mr Sajjad examined a number of mechanisms for ensuring the
accountability of government to parliament. The major constitutional
instrument of a confidence motion needed to be protected by legislation
against floor-crossing, so that a member who changed party lost his/her seat.
Parliamentary scrutiny of the executive required that ministers should be
answerable for their conduct to parliament on a day to day basis through
questions on the floor of the house and through appearance before
parliamentary committees. Outside parliament, a free and independent press
had a vital role as had the electronic media.
In discussion, there was some lively dissent from Mr Sajjad’s support for
anti floor-crossing legislation. While it was arguable that a member who left
the party under whose ticket he/she was elected should seek a fresh mandate
from the electorate, such legislation might be regarded as undemocratic,
particularly where, as in Pakistan, it applied where a member was expelled
from the party.38
There was emphasis on the need for solidarity amongst associations of
legal professionals in the face of threats to the rule of law and the importance
of the Commonwealth legal non-governmental organisations in this regard.
Various ways of strengthening the role of parliament were discussed,
including the provision of research capacity to provide access to non-partisan
information. The role of an independent Auditor reporting to parliament was
recognised as was the need to ensure that standing committees, particularly
the public accounts committee, were not dominated by government.39

35 Below, p 99.
36 Below p 101.
37 See Guidelines, VIII, 7, below, p 27.
38 See Guidelines, III, 2, below, p 21.
39 See Guidelines, VI, 2(a), below, p 24.

12
 Report of the Conference Proceedings

PLENARY 5
RELATIONSHIPS WITH THE EXECUTIVE

The fifth plenary session, chaired by the Hon Mr Justice John Dowd
(Australia, CMJA), was addressed by Dr Rodger Chongwe, SC (Zambia, CLA)
and Professor Robert Martin (Canada, CLEA).
Dr Chongwe considered administrative law controls through judicial
review of executive action.40 He noted that in Africa, the development of
judicial review has been linked to detention cases, although much depended
upon the willingness of judges to go behind the detention order to ascertain
the reasons for the order. There was a need for international assistance in
developing administrative law in many Commonwealth jurisdictions. In this
connection, the seminars organised by the Legal and Constitutional Affairs
Division of the Commonwealth Secretariat had been of great value to judges,
civil servants, police and practitioners alike.41
Professor Martin spoke about freedom of expression, on which all the
objectives of the Colloquium were dependent. He drew attention to the
Statement on Freedom of Expression for the Commonwealth, particularly
paragraph 2 requiring express constitutional guarantees of freedom of
expression and paragraph 4 dealing with state security and public order. The
latter paragraph deplored the use of colonial emergency provisions (which
should be repealed) and the use of the law of criminal libel to control
expression.42
In discussion, it was emphasised that decision-makers should be obliged
to give substantive reasons for their decisions: legislation should avoid ouster
clauses and the conferring of over-wide discretion on the executive. It was
noted that the South African Constitution embodied a right to administrative
justice implemented by an Open Democracy Act.43

40 ‘Judicial Review of Executive Action: Government under the Law’, below, p 103.
41 Below, p 108. See, also, Guidelines, VI, 2(b), below, p 25.
42 The Statement on Freedom of Expression for the Commonwealth is set out in Appendix
2, below, p 141.
43 See section 33 of the Constitution of the Republic of South Africa, 1996.

13
 Parliamentary Supremacy and Judicial Independence

PLENARY 6
JUDGES, PARLIAMENTARIANS AND CIVIL SOCIETY

The sixth plenary session, chaired by Dr Peter Slinn (United Kingdom, CLEA),
was addressed by Mr Colin Nicholls, QC (CLA, UK), The Rt Hon Paul East,
QC, MP (New Zealand, CPA) and The Hon Justice Rasheed Razvi (Pakistan,
CMJA).
Colin Nicholls, in considering the public perception of judges and
parliamentarians, noted that, whereas, according to opinion polls conducted
in England, there had been a slight decline, to 68%, in the proportion of people
who trusted judges to tell the truth, in the case of government ministers and
politicians, the figures had declined to 11% and 14% respectively. 44 Mr
Nicholls noted that the government response to public anxiety about ‘sleaze’
in the United Kingdom had been to set up a ‘Committee on Standards in
Public Life’ chaired by a Law Lord, Lord Nolan. While the Nolan Report
disclosed some confusion as to what was acceptable behaviour in society
generally and particularly within government, the global picture was
grimmer. So far as the world in general was concerned, there was a culture of
corruption endowed by custom with an acceptability no longer to be
tolerated. Codes of conduct required provision for educating civil society, that
is, the people, as to how those codes would be observed by judges and
parliamentarians. Only in that way could the people have a true perception of
the integrity of government.45
Paul East addressed the colloquium on the theme of parliamentary
privilege and the sub judice rule.46 He began by pointing out that press
freedom was dependent on access to information. Statutory guarantees of
freedom of information such as the New Zealand Official Information Act
1982 were therefore of great value. Whether express statutory guarantees of
press freedom were necessary depended on local circumstances. The New
Zealand experience was that relations between parliament and the judiciary
were governed by a doctrine of mutual restraint. Thus the law requires that
the courts do not question the proceedings of parliament. On the other hand,
parliament will not discuss pending court cases if there is a danger of
prejudice to the case in question. The most important parliamentary privilege,
freedom of speech, was protected by Article 9 of the Bill of Rights, 1688.
Although this did not preclude the reporting of parliamentary proceedings or
the giving of factual evidence in court of what occurred in parliament, there

44 ‘Judges and Parliamentarians: The Public Perception’, below, p 111.

45 Below, p 114.
46 ‘Free Speech: Parliamentary Privilege and the Sub Judice Rule’, below, p 117.

14
 Report of the Conference Proceedings

must be no abridgement of the protection of members from court action for

anything they might say in parliament.47
Justice Razvi drew on the experience of Pakistan in analysing the
relationship between judges and parliamentarians.48 Historically, they were
drawn from different sections of Pakistani society. Many MPs represented the
land-owning classes, whereas the judges tended to be drawn from the ranks
of the urban middle class intelligentsia. Parliamentary leaders were
unresponsive to public opinion and their autocratic tendencies had given rise
to judicial activism. This tendency towards autocracy had at times found
expression in outright military rule. The judges had been left as upholders of
the rule of law: in the face of governmental and parliamentary hostility:
The public perception in Pakistan with reference to the judiciary is that the
common person expects from the judges that they will rise to the occasion in
order to protect and uphold their fundamental rights and protect them from
repressive laws enacted by parliament.49
In discussion, there was general support for the need to strengthen civil
society so as to create a culture inimical to intimidation of judges and of
parliamentarians and to curtailment of press freedom. The proposed
Guidelines should promote co-operation between government and civil
society and draw strength from co-operation between the sponsoring
organisations and other elements in the community.

PLENARIES 7 AND 8
ADOPTION OF DRAFT GUIDELINES

The final plenaries (chaired by Mr Arthur Donahoe, QC (Secretary General,

CPA) and Dr Peter Slinn (Vice President, CLEA)) were devoted to the
adoption by consensus of the draft Guidelines prepared as a result of the
deliberations in three workshops and an ad hoc drafting committee consisting
of representatives of the four sponsoring organisations.
Issues which emerged from the deliberations of the individual workshops
(see Appendix 1) included:
• Dialogue between judiciary and government. The final wording of the
Guidelines reflects the concerns of those who felt that any positive
encouragement of dialogue between the government and the judiciary on
policy matters might compromise judicial independence.50

47 Guidelines, III, 1, below, p 21.

48 ‘Judges and Parliamentarians: The Public Perception’, below, p 123.
49 Below, p 127.
50 Guidelines, I, 5, below, p 19. Cf Appendix 1, below, p 132.

15
 Parliamentary Supremacy and Judicial Independence

• Judicial appointments. The words ‘in jurisdictions that do not have an

appropriate independent process in place’ were inserted in order to meet
the concerns of those jurisdictions having satisfactory existing procedures
which do not involve a formally constituted commission.51
• Security of parliamentarians. The issue of expulsion of members as a
penalty for leaving the party for which he/she was elected provoked
perhaps the most serious difference of view. There was strong feeling that
any legislation against floor-crossing was a severe threat to the
independence of members. However, the experience of some jurisdictions
suggested that such legislation was an essential weapon against
corruption of members. The eventual wording acknowledged the potential
threat to independence of such measures but accepted their necessity in
the context of corruption.52

51 Guidelines, II, 1, below, p 20. See, also, Appendix 1, below, p 134.

52 Guidelines, III, 2(a), below, p 21. Cf proposals regarding accountability of individual
members of Parliament, Appendix 1, below, p 134.

16