Listen to the judiciary

Lawyers were not the most important delegates at the Commonwealth Law Conference last week. The people who really mattered were the judges.

If the former British Commonwealth still has a role, then it must be mutual assistance. The Commonwealth Lawyers’ Association (CLA), which chose Glasgow for its 19th biennial conference, was established to promote the rule of law across the Commonwealth and beyond. But it is the Commonwealth judges who must breath life into a concept that is not always fully understood.

‘There is nothing vague about the rule of law,’ Professor Sir Jeffrey Jowell QC told guests at a dinner in the marbled splendour of Glasgow’s Victorian city chambers. ‘It is the mechanism that shifts arbitrariness to accountability.’ As director of the Bingham Centre for the Rule of Law, he summarised its main concepts as legality (nobody is above the law); certainty (fair warning must be given before the law is changed); equality (available to the rich as well as the poor); and accessibility (giving individuals the power to hold ministers to account).

Jowell said that the rule of law was a universal concept but attacks on it were a universal problem. He hinted that the US would be found wanting in new research to be published by the Bingham Centre next month.

The pivotal importance of Commonwealth judges in upholding the rule of law was brought home to delegates by Toby Cadman, a London-based barrister who spoke just two days after an Islamist leader had been hanged in Bangladesh.

Muhammad Kamaruzzaman, 62, an assistant secretary general of the Jamaat-e-Islami party, was found guilty by a special tribunal of heading a militia group that was behind a massacre of at least 120 unarmed farmers during the conflict. Earlier this month, he lost his final appeal to the Bangladesh Supreme Court. Were the judges doing their best to uphold laws that hold popular support? Or was this a deeply flawed process resulting in judicial murder?

Cadman, who has been acting as defence counsel, is in no doubt. ‘The Bangladesh International Crimes Tribunal, for all the government rhetoric, has been an abject failure as far as the administration of justice and the principle of a fair trial are concerned,’ he said.

How, though, are judges to decide what the rule of law requires? The difficulty was illustrated last month when the UK Supreme Court overturned, by a majority of five to two, the attorney general’s veto on publication of letters written by the Prince of Wales to government departments.

For the majority, Lord Neuberger said that ‘a statutory provision which entitles a member of the executive to overrule a decision of the judiciary merely because he does not agree with it… would cut across two constitutional principles which are also fundamental components of the rule of law’.

But the two dissenting judges took the view that parliament meant what it said when it allowed ministers to veto disclosure. According to Lord Wilson, the majority did not just interpret section 53 of the Freedom of Information Act 2000: ‘It re-wrote it. It invoked precious constitutional principles; but among the most precious is that of parliamentary sovereignty, emblematic of our democracy.’

If the judges can’t be sure what the rule of law requires, the CLA is there to help them. Last year, James Guthrie QC was briefed by the association to intervene in an appeal from Mauritius to the Judicial Committee of the Privy Council. Dharmanand Dhooharika, the editor of a Mauritian newspaper, had been given three months in prison for ‘scandalising the court’ after he published allegations about his country’s then chief justice. In his appeal to London he was represented by Geoffrey Robertson QC and Mark Stephens CBE, the ebullient London solicitor who retired last week after two years as president of the CLA.

Scandalising the court is a form of contempt that was invented by English judges in the 18th century, but abolished by statute in England and Wales two years ago. As Guthrie told lawyers who’d gathered in Glasgow, it still exists as an offence in Scotland, where it is known as ‘murmuring judges’. The Privy Council found last year that the offence still existed in Mauritius too, while overturning the editor’s conviction because he was not shown to have acted in bad faith and had not received a fair trial.

So it’s all down to the judges. In his opening address, Lord Gill, the Lord President, sounded a warning: ‘Where it is clear that some of the best of the profession are not interested in a judicial career, there is something wrong – either with the conditions of the job or with the appointments system itself.’

It’s not just in countries such as Mauritius that governments should listen to the judges.