Report of Activities of the Commonwealth Secretariat in the Legal Field

Author:Commonwealth Secretariat
Pages:305-322
SUMMARY

Introduction. General issues. Organisation and staffing of the division. Provision of information. Commonwealth Law Bulletin. Criminal law section (CLS). Good Governance and the Elimination of Corruption. Provision of Information. Asset Repatriation Working Group. International Criminal Court. Terrorism. Justice section (JS). Land and Development. Judicial and Legal Reform. Freedom of Information ... (see full summary)

 
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Page 305

Introduction
  1. This paper reviews the activities of the Secretariat in the legal field and spans the period from the last Law Ministers Meeting held in St Vincent and the Grenadines in November 2002, to the end of October 2005.

  2. At the last Commonwealth Law Ministers Meeting the agenda was largely based on the principles set out by Commonwealth Heads of Government in their 2002 Coolum Declaration. These principles reaffirmed the Commonwealth's commitment to democracy, the rule of law, good governance, and freedom of expression and the protection of human rights. They also condemned in the strongest possible terms, all forms and manifestations of terrorism and re-affirmed the determination to work to promote people-centred sustainable development. The work of the Division very broadly reflects this mandate in terms of its emphasis on terrorism and training in counter- terrorism initiatives and its work on access to justice and keeping countries abreast with the development of international legal norms.

  3. The 2003 Commonwealth Expert Group Report on Development and Democracy rightly identified one of the central problems of the stalled processes of democratisation as institutional weakness noting that effective institutions are essential to successful democratisation. Many new and fragile democracies lack the institutional infrastructure necessary to embed democratic practices into a viable reality, capable of promoting the rule of law. It is therefore important to have the human resource capacity, viable institutional mechanisms and appropriate constitutional and legal frameworks to check potential abuses of executive power and challenge corruption. These issues were reflected in the agendas of the 2004 Senior Law Officials and Attorney-Generals of Small Jurisdictions meetings. This year's Law Ministers Meeting sees the addition of the following legal policy issues amongst others for consideration: Developing Legal Education in the Commonwealth; Law Reform Agencies: Their Role and Effectiveness; Juvenile Justice Policy; Control of the Proliferation of Small Arms, Ammunition and Light Weapons in the Commonwealth; Guidelines for an Independent Regulatory Framework for Commonwealth Broadcasting Organisations; and Implementing International Environmental Instruments in Small States.

General issues
  1. In light of the renewed agreements made by member states at the 2003 Commonwealth Heads of Government Meeting (CHOGM) and the Secretariat's strategic plans, the Legal and Constitutional Affairs Division (LCAD) continues to give priority to the provision of technical assistance and policy advice on strengthening and furthering the capacity of judicial and legal processes and institutions. Particular attention has been paid to the development of model legislative provisions and programmes to support the domestic implementation of legislation, developing stronger legal frameworks and enhancing operational capacity to address issues of security, terrorism, money laundering and asset repatriation. Support was also given to enhancing conducive business and investor regulatory frameworks through regional meetings.

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  2. The exercise of prioritisation and strategic planning led by the Strategic Planning and Evaluation Division (SPED) of the Secretariat has ensured that LCAD plans its divisional programmes in a more robust manner to make optimum use of resources. LCAD has also been given significant support in some of its strategic programmes by external donors which has enabled the Division to carry out a record number of activities for the period under review as will become apparent from the reports of the work of its three sections below.

  3. LCAD continues to provide in-house legal advice to management on a varied number of issues. With the recent implementation of the Commonwealth Secretariat's 2003 Terms and Conditions of Service a substantial amount of time and resources has been devoted to contractual and human resource issues. Additionally, the Division continues to represent the Secretariat when actions are brought before the Commonwealth Secretariat Arbitral Tribunal. The United Kingdom Government passed the International Organisations Act of 2005 on 7 April 2005 to extend immunities to the Arbitral Tribunal Members amongst other things. LCAD also ensures the best possible legal representation where the Secretariat has had suits filed against it before the UK Courts and Employment Tribunals.

Organisation and staffing of the division
  1. The former Director of LCAD, Ms Dianne Stafford from Australia resigned in 2003. Mrs. Betty Mould-Iddrisu from Ghana was appointed in her place and assumed office in November 2003.

  2. Ms Kimberly Prost former Head of the Criminal Law Section (CLS) also resigned early in 2005 to take up a position with the UN Office on Drugs and Crime (UNODC) where she continues invaluable global work in criminal law. Ms Arvinder Sambei of the UK assumes office as Head of the CLS in September 2005 and we look forward to the considerable expertise she brings to bear on the Secretariat's cutting edge work in this area.

  3. Other staffing changes have taken place and LCAD is in the process of recruiting several other legal staff to replace those whose current contracts have expired or have resigned.

  4. LCAD has also enthusiastically embarked on a programme of interns and since 2004 has had interns and legal assistants from the UK, Mozambique, British Virgin Islands, St Lucia, Mauritius and Sri Lanka amongst others; we anticipate continuing with this diversity over the next few years. This programme has enabled LCAD to be enriched with the interns bringing a wealth of diversity to our legal programmes.

Provision of information
Commonwealth Law Bulletin
  1. The Commonwealth Law Bulletin (Bulletin) is central to LCAD's prime function of disseminating information on legal developments around the Commonwealth. First published in 1974, this year the Bulletin celebrates 30 years of publication and continues to be the flagship publication of the Secretariat in the legal field.

  2. Although originally a quarterly publication, from 1996 onwards the Bulletin has been published bi-annually, in June and December for economic reasons, but without any reduction in page content. Again for reasons of economy, production was moved overseas in 1998, but problems of time and distance have continued to beset the timely production of this publication.

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Criminal law section (CLS)
Good Governance and the Elimination of Corruption
  1. The results of a survey on the status of mechanisms to fight corruption in member countries indicated a gap in the legislative frameworks of many member countries. As a result, a programme was developed by the Criminal Law and Justice Sections to encourage and assist member countries to adopt anti-corruption legislation.

  2. In April of 2004 an Expert Group meeting was convened to consider model legislation and guidelines. The Report of the Group is being finalised and will provide drafting instructions for model legal provisions which will then be prepared by a legislative drafter for consideration by Law Ministers at their next meeting.

  3. Following the recommendation of the Judicial Colloquium on Corruption (Cyprus, 2002), the CLS has held two regional workshops for the Caribbean (St Lucia, June 2003) and Southern African (Mauritius, 2004) on Anti-Corruption and Integrity in the Judiciary. Details of the programme are contained in SOLM(04)11.

Provision of Information
  1. The major publications from the CLS are Commonwealth Legal Assistance News (CLAN) and Crimewatch.

  2. The Money Laundering and Mutual Assistance in Criminal Matters manuals have been updated, the former having been expanded to include legislation relating to the Financing of Terrorism. The CLS will introduce a new manual that contains a collection of the laws of Commonwealth countries on Terrorism and Terrorist Financing.

  3. The CLS also maintains a database on the laws of member jurisdictions relating to the London Scheme for Extradition within the Commonwealth and the Harare Schemes on Mutual Assistance in Criminal Matters and the Transfer of Convicted Offenders, as well as on a broad range of topics such as money laundering, proceeds of crime, corruption and recently, terrorism. From its database and information obtained from member...

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