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  • 15 Aug 2016 21:44 | Anonymous member (Administrator)

    The CLA covers the interests of 53 countries comprising the Commonwealth of Nations.  The circumstances for the legal profession and the rule of law in those countries vary enormously.  Even so our laws have similar heritage which is enshrined in the Commonwealth Charter: upholding the rule of law and everything necessary to do that. 

    United Nations Sustainable Goal 16 states “Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels”  

    It is a fundamental right of people to have access to law and it is an equally fundamental right that lawyers should be free to assist their clients, especially so when that may be unpopular generally, or at odds with Government views, or in any other circumstances.

    One country where the lawyers must be particularly courageous to carry out their work is Pakistan, and from my experience over the last 30 years, they are very courageous.

    The President of the Baluchistan Bar Association, Mr Bilal Anwar Kasi was assassinated in Quetta on the 8th August.  He was driving in his vehicle when an assassin on a motorbike killed him.  Mr Anwar’s body was taken to a hospital in Quetta where a large group of lawyers mourning his murder, as well as journalists and others, had gathered at the emergency department to accompany his body on its journey to its final resting place.

    As they were there showing their respect, a suicide bomber with an explosive belt detonated his device causing massive destruction, death and injury.  The news report from Pakistan referred to an entire generation of lawyers being wiped out in the close knit legal community.

    Various terrorist organisations have claimed responsibility and, more worryingly for our colleagues, said they will continue to carry out such attacks.

    Lawyers acting in the course of their business or mourning the death of their colleagues are not fighting in a war or suppressing people, or posing any threat that needs to be dealt with.  Indeed mostly it is the lawyers who would be representing people charged with terrorist offences who are brought before the court.

    CLA has often reflected upon and made representations concerning past anti-terrorism law where the balance between their necessity and human rights can be blurred, increasingly so. 

    We record here most emphatically our outrage and disgust at the cowardly and perplexing attack.  We also give our deepest sympathy for the families and friends and colleagues of all those who were murdered.

    Our colleagues in Pakistan have been attacked in the past and have always come back to continue to practice their vital role in the justice system.  They will again, more difficult as it becomes, and have our very sincere respect for their courage.

    Pakistani lawyers staged a nationwide strike on Tuesday after dozens of colleagues were slain in a suicide bombing that killed at least 70 people at a hospital in the South Western city of Quetta.

    “How weak and pathetic are these people who target hospitals, where women and children, where patients, go to get treatment?” Ashtar Ausaf Ali, Pakistan’s attorney general, said on Tuesday at a protest outside the Supreme Court in the capital Islamabad. Supreme Court Bar President Ali Zafar called for the government to do more to protect lawyers.

    Alexander Ward

    August 2016

  • 18 May 2016 14:43 | Anonymous member (Administrator)

    Following the Commonwealth Lawyers Conference in Hong Kong in 2009, the Commonwealth Lawyers Association adopted and published a policy on the death penalty.

    The policy is clear cut in that the CLA is opposed to the death penalty as a form of punishment in all instances.

    We put upon ourselves a commitment to advocate for the abolition of the death penalty in Commonwealth jurisdictions wherever it remains as an available sentence.

    The death penalty is always an emotive issue.  It has been abolished in many of the Commonwealth countries as any form of punishment but still remains in use in a significant number of Commonwealth countries and in some instances, has been recently reintroduced after suspension. 

    It remains an available penalty in the world’s most powerful countries including the USA and China. 

    I was present at a meeting of the various Attorneys-General of the Commonwealth when one of the Attorneys was advocating for the use of the death penalty on this proposition: ‘Why should prisoners who have committed crimes be kept alive to be fed and housed at the expense of the State? ‘

    How far does one take such a proposition?

    Of course there are heinous crimes where one considers the most severe punishment should be appropriate.  However, if you say it would be an appropriate penalty for some crimes, it then becomes an issue of what is considered to be appropriate? 

    Our advocacy on this position has recently come to the fore with cases arising in Bangladesh of Motiur Rahman Nizami (Executed on the 11 May) & Mir Quasem Ali (awaiting execution) who had convictions handed down against them by the Bangladesh International Crimes Tribunal.

    The death penalty is now in contemplation for them.  The Supreme Court has dismissed their appeals against conviction notwithstanding an acknowledgment that there were concerns with regards to the process that occurred in the proceedings.

    The Tribunal was established in 2009 to investigate and prosecute suspects of crimes committed in 1971 during what is described as the Bangladesh Liberation War. 

    Human Rights Watch has criticised the Tribunal for issues of fairness and transparency and alleged harassment of lawyers representing the accused persons and their witnesses.

    Given the absolute severity of the penalty, even if one approves of capital punishment, it has no place where there is the merest suggestion of any irregularity in proceedings or the procedures leading up to the proceedings.

    In Pakistan, a moratorium on executions was in place since 2008, but following a cowardly attack on the Army Public School in December 2014 by terrorists with extensive loss of life (mostly children) the moratorium was lifted.  The lifting of the moratorium was connected with the decision to execute terrorists, with the establishment of military courts to expedite such matters.  Since lifting the moratorium, various organisations have estimated well over 300 executions have taken place in that country.

    I certainly accept that the gutless murdering of children would give rise to calls for the most severe penalty. But the use has gone beyond that particular instance. Establishing a tribunal to deal with these matters expeditiously causes great alarm. If the death penalty is an available punishment why oust the existing Courts with their legal oversight to ensure fairness and propriety?

    I note with great concern that our colleagues in Malaysia are urging the Singaporean Government to grant clemency for convicted murderer Kho Jabing, a Malaysian from Sarawak. It is reported that he was charged with murder in connexion with a robbery. Initially sentenced to hang in 2010, he appealed (twice) and in 2013 a sentence of life imprisonment and 24 strokes of the cane was imposed. This sentence was then appealed by the prosecution.  Singapore Court of Appeal imposed the death penalty on a 3/2 split decision in January 2015.

    An appeal from that decision was dismissed, with the Appeal Court reported as finding:

    “Finality is an integral part of justice. It would be impossible to have a functioning legal system if all legal decisions were subject to constant and unceasing challenge”

    The use of the term ‘finality’ in relation to death penalty cases demonstrates the very need to allow for Judicial review, especially if the sentencing court was not unanimous.

    In keeping with our clear policy, we join the call for clemency in Kho Jabing’s case.

    The CLA acknowledges the sovereignty of all Governments.  One can certainly have a sense of the most severe justice in response to gutless acts of terrorism where innocent victims are targeted.  However the CLA is committed to advocate for the abolition of the death penalty in Commonwealth jurisdictions wherever it remains as an available sentence.

    If the death penalty is an available sentence in legal systems where there can be any concern as to the validity or propriety of proceedings, then those Commonwealth countries must be subject to urgent scrutiny by the Commonwealth of Nations. The Commonwealth has an obligation for the promotion of the administration of justice and the protection of human rights.  These are in accordance with the principles enshrined in the Harare Declaration of 1991, the Latimer House Principles of the Commonwealth 1998 and the Commonwealth Charter of 2013.

     Alexander Ward

  • 20 Dec 2015 20:08 | Anonymous member (Administrator)

    Victims: should we be taking better care of them?

    As we head towards the festive season and all the chores that it brings, accidents are hopefully not on the top of our list.

    None of us want or expect to have an accident nevertheless how we deal with accidents and the compensation of victims is as important to upholding the rule of law as any of the other laws which govern our modern societies.

    The entitlement to compensation arises if somebody has suffered a loss as a consequence of the tortious act of another.  If the person can establish that he has been wronged, and then establishes his loss, he is entitled to compensation.

    In my view any attack upon rights and entitlements can present a challenge to the rule of law and it stuck me while reading that in a recent review the UK Government proposed a raft of changes including restrictions on personal injury compensation, which is concerning.

    With the increase of the use of motor vehicles injuries arising from them have become far more commonplace.  As a means of protecting the injured victims from other people’s negligence, compulsory third party (CTP) schemes have been introduced by Governments in many parts of the world who run, or oversee the schemes.

    A person injured in a motor vehicle accident is no less a victim than someone injured by an unprovoked assault or other event as a result of which they suffer an injury.  They have an entitlement to compensation to the extent to which they were not responsible for their injuries.  In the case of motor vehicle accidents, to say that such a person is not entitled to compensation simply because the mechanism for injury involved the tortious use of a car is difficult to support. 

    Why do we not trust the courts to measure the extent of compensation?  If the injuries are minor then the compensation awarded will be accordingly minor.  A person should not be stigmatized as unworthy purely by measurement of the extent or type of injury. Compensation is not awarded if a person is not actually injured and in my 30 years’ experience in the field (more often acting for insurers) it did not appear that people would, generally speaking, intentionally suffer an injury simply to receive a financial windfall.

    Any erosion of the rights of victims should be carefully scrutinised.  We can only try to implement changes to the conditions and to improve safety for these victims but this is not best served by curtailing genuine compensation in the event of accidents. There should be a significant and compelling justification to do that.

    When I talk about victims I am quickly reminded that it is a broad term and of the ways in which the peoples of the Commonwealth may become victims through car accidents as above but also through crime, or as victims of war, hatred, and terrorism. 

    This week I came across an article describing the 20 year anniversary of the murder of Philip Lawrence, a headmaster of a boy’s school in London, who was stabbed to death while trying to break up a fight outside his school.  Mr Lawrence was one of an increasing number of victims of knife crime, a problem shared by many of our Commonwealth member states including my own.  

    Knife crime is particularly prevalent amongst the young and many of these young people may also be victims of a culture of fear, bullying or a gang culture the leads them to carry knives in the first place. They also deserve our help and support to change their circumstances and forge a better future.  Mr Lawrence’s widow chose to address the problem at the root cause turning young people away from gangs by starting and award programme for positive contribution of young people between the ages of 11-20. 

    In Australia we are saddened to see an increasing number of young people become victims of radicalisation by terrorist groups who turn the social media tools intended for positive expression into weapons which breed dissatisfaction and draw our youth into a culture of violence.  The pointless violence was demonstrated in the Lindt Café siege and killings in Sydney one year ago.

    As I noted at the beginning of this article, when we think about how people come to be victims it is broader than just a single cause but how we deal with them under all circumstances should be even handed and appropriate. Any less than this is a cause for concern and does both the victim and us a disservice.

    We are guided by the Latimer House Principles and the Commonwealth Charter which set out the objectives and good governance guides for all the member states.  CLA remain committed to those objectives.  

    May I wish you and your families a peaceful and joyous festive season and good wishes for the New Year.

    Alexander Ward is President of the Commonwealth Lawyers Association and a qualified barrister who practises at Edmund Barton Chambers in South Australia.

  • 23 Nov 2015 20:03 | Anonymous member (Administrator)

    From the President's Desk

    Special Edition - Paris Bombings

    This week Europe remains in shock at the senseless loss of life caused by the recent incidents in Paris but we are all too quickly and tragically reminded that terrorism respects no territorial boundaries and those who carry out acts of terror do so dispassionately and indiscriminately. To the terrorist humanity is an undiscovered country.  

    As I write this I am reminded that the victims of terrorism are not just those who pay the ultimate price of losing their life but the hundreds of people whose lives are changed for ever by acts of terror, of the displaced and unsettled men, women, and children who are left injured, both physically and emotionally, and to the many who are made homeless or stateless.

    Our thoughts go out to the people of Nigeria following the incident in Maiduguri market committed by two young women who took both their lives and killed and injured a number of others, to the hostages of the Mali hotel siege, and the family of those killed in the church massacre in Charleston, and to all those who suffer at the hands of terrorism.  

    In my last post I talked about the importance of freedom of expression and how often the driving forces for policy change is an act of terrorism. Governments must now tackle the problems of the new threats and seemingly random attacks.  By example we have seen the recent reaction of the UK government who announced on 19th November their intention to increase the financial commitment to the UK security forces with a view to toughening security measures for the further protection of its citizens and a unanimous vote but the UN Council to act against the so called "Islamic State"

    At the same time Commonwealth governments must balance reaction against the reality of the thousands of refugees on their borders, many escaping brutal regimes. UK Prime Minister David Cameron in his recent Munich speech said  "A passively tolerant society says to its citizens, as long as you obey the law we will just leave you alone.  It stands neutral between different values. But I believe a genuinely liberal country does much more; it believes in certain values and actively promotes them.  Freedom of speech, freedom of worship, democracy, the rule of law, equal rights regardless of race, sex or sexuality.  It says to its citizens, this is what defines us as a society: to belong here is to believe in these things”. 

    It is also vitally important that incursions on liberty which societies will accept in extraordinary circumstances will be used only for those purposes.

    The difficulty in reflecting upon these events not a recent phenomonon but one over which in the past years there has been a lack of obvious purpose for these terrorist acts. Countries within the Commonwealth and the world strive to find a ways to deal with the problems at their roots, as to what the causes are that create the individuals who consider it their right to indiscriminately kill innocent people, without regard to their ethnicity or their religious beliefs. 

    Alas, we see Governments being forced to deal with the problems in the aftermath of attacks with greatly increased security measures, anxieties as to otherwise fair and just immigration policies, and incursions on civilian privacy as a necessary means to try and prevent the violence.

    In these difficult times, the Commonwealth Lawyers Association remains committed to upholding the rule of law, the values enshrined in the Commonwealth Charter and the Latimer House Principles.

    Alexander Ward

    23 November 2015

  • 17 Sep 2015 19:58 | Anonymous member (Administrator)

    Dear Members, I am delighted to be able to post this note on our new website and trust that you are as impressed with it as I am as a way of getting forward information on behalf of the CLA.

    My home jurisdiction is South Australia, in Australia. 

    South Australia was the first jurisdiction in Australia to decriminalise homosexuality forty years ago on 2nd October 1975.  The criminalisation came about with the founding of the colony of South Australia in the 1830s and the imposition of the English law, much as every other country colonised and forming part of the British Empire, now the Commonwealth of Nations.

    The decriminalisation of homosexuality was a tremendous milestone for my jurisdiction and has us in the position in 2015 where it is inconceivable to the general population that homosexuality would be a crime.  That is not to say there is a complete removal of discrimination, but compared to other jurisdictions in the Commonwealth, the LGBTI community is respected and (relatively) free of discrimination – but there is always more work to do.

    A catalyst for the change in South Australia was the killing of Law lecturer, Dr George Duncan on 10 May 1972.  Dr Duncan was a lecturer at the University of Adelaide (where I obtained my degree).  Dr Duncan was thrown into the River Torrens which runs through Adelaide near the University precinct.  He drowned. The allegation was that this was done by members of the police force. A senseless, wasteful killing in the pursuit of “poofter bashing”.

    According to an excellent biography prepared by Mr T Rees, the case gained nationwide publicity back in 1972 because it involved “the broader issue of homosexuality and attitudes towards it”.  On 15th September 2015 The University recently set up a memorial tribute to Dr Duncan and to mark the 40th year anniversary of the repeal of the laws, and this was opened by Commonwealth Eminent Person and dear friend of the CLA, the Hon Michael Kirby AC CMG.

    Homosexuality is now decriminalised in all jurisdictions within Australia, and a number of other Commonwealth countries.  The decriminalisation of LGBTI practices is a matter that the CLA continues to have under discussion, from the very point of the classification of such behaviour between consenting adults in private as criminal, to the proportionality of punishment. It is an issue the CLA placed firmly on its agenda at the Hong Kong CLC in 2008.

    The purpose of this blog will be to provide updates on activities of the CLA and our advocacy over all of the regions.  I therefore welcome any contributions from CLA members of particular issues in your home jurisdictions or issues of which we should be mindful on a wider basis.

    Our cover photo: (L to R) Barrister A Durkin; The Hon M Kirby AC CMG; Alexander Ward President CLA; and Dean of Adelaide Law School Prof John Williams at Dr Duncan commemoration on Friday 11 September 2015

    Note: all submissions should be addressed to membership@commonwealthlawyers.com with the subject line "for CLA blog" all submissions must follow our conditions for use of the site and will be moderated by the CLA web administrator.

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