Commonwealth Law Conference: the finale

Anyone who thought that Glasgow 2015 would gently wind down to a conclusion on the final morning reckoned without the strength of feeling generated by prohibitions of homosexuality.

Both the final streamed sessions and the day's keynote address revealed why it continues to give rise to impassioned debate.

The morning followed a reverse pattern to the previous days, opening with the four streams before we all came together for the main address and the concluding presentations. I opted to see what “Homosexuality as a crime” might reveal about attitudes within the legal profession in the 41 Commonwealth countries where that is still the state of the law.

The first two panelists, from the Human Dignity Trust, briefed us pretty thoroughly about the British legacy of criminalisation and the inroads made against this, chiefly in the old Commonwealth countries, with the aid of litigation founded on human rights principles, along with the advances and reverses elsewhere (there have been both in recent years). So much, we heard, turns on the issue of proportionality (of laws restricting human rights) and its treatment in national courts. The third, Conway Blake, gave a first hand account of litigation in Belize and in Singapore, attempting to found on constitutional freedoms. The latter failed; judgment in the former case is still awaited after almost two years. Two points of concern to Blake were the difficulty experienced sometimes in finding lawyers to represent individuals involved in such cases; and the trend of judicial deference, with courts saying that any remedy lies with the legislature, though legislatures are tending if anything to impose even more severe penalties.

To the podium then came Michael Kirby, former Australian High Court judge. He opened with a frank statement of his own homosexuality – so that, he hoped, we could come to see that homosexuals were people we would talk, work, meet with as we could any others. In a similar way, he said, the racism previously rife in Australian society began to be overcome as people became used to Asians living and working among them.

“You can't just blame the British”, Kirby added, given that many countries have now gone 50 or 60 years since independence. He pointed to some glimmers of light: a Kenyan case in favour of a transgender person, and the fact that Rwanda and Mozambique, Commonwealth members without the British legal legacy, have resisted pressure to adopt penal laws.

The debate was opened to the floor, and things really became lively. A Nigerian complained that there was no balance on the panel (the chair said they had failed to find an opposing speaker). There were comments about there being human wrongs as well as human rights; that the African nations should have been accommodated; and that they believed in the issue being decided by their Parliament, which spoke for the people. A Caribbean judge replied that human rights exist for the protection of minorities and don't depend on the views of majorities. Kirby asked why Africans who had suffered race discrimination, didn't see that this was also discrimination. Unfortunately time was called when it looked like the debate could run for the rest of the morning.

But Kirby was the mainstay of the final plenary session, in which he began with a vision of universal law replacing war. Could the Commonwealth help achieve that? In 2009 he had been appointed to the “eminent persons group” given the challenging mandate of considering how to make the Commonwealth fit for the 21st century. One of their recommendations was a Commonwealth Charter, which was duly adopted in 2013 proclaiming principles he himself had sketched out. Another was the appointment of a Commissioner with a brief covering democracy, the rule of law and human rights, an idea unfortunately killed off due to the indifference or antipathy of political leaders and the Commonwealth Secretary General, who had however not acted on such issues when he had the chance. And here the LGBTI issue was raised again. Kirby concluded by calling for the next Secretary General, due to be elected this year, to be “someone for the current age, someone to make us proud of the Commonwealth”, and someone who would take a stand against dictators and for human rights.

Again a Nigerian protested against values being imposed on a country from outside, calling (to considerable applause) for respect for the culture of a country. Kirby's response was to show he knew the Nigerian anthem he had learned while living there (which includes the words “In brotherhood we stand”). Loud applause also greeted his words: “We have to live together; we have to learn to respect each other.”

There again the debate had to conclude, and it was time for presentations: to the winning University of Toronto mooting team; and the LexisNexis Rule of Law Award to Upul Jayasuriya, leader of the Sri Lankan Bar during the recent crisis when the President sought to impeach and unconstitutionally remove the Chief Justice, for resisting a series of moves to entrench the President's own position as well as practices of detention and torture. “I too was called on to pay the price”, he told us, in another reminder of the difficulties faced by colleagues with whom we were mingling at the conference. Promising his cash prize to the widow of a disappeared journalist, he added: “The award doesn't belong to me but to those who made the sacrifice for the betterment of our nation.”

All that was left then was for the Commonwealth Lawyers Association chairmanship to be formally transferred from Mark Stephens to Australia's Alex Ward, and for our Alistair Morris to deliver the deserved thank yous – to the Glasgow organisations, the conference chairs and speakers, the stewarding company, the CLA executive, the two organising committees; and most especially to the Law Society of Scotland's Katie Hay, whose full time job for the last two years has been trying to make sure the conference all came together. Well, it did. It was a privilege to be there.

Footnote: We won't know for a few months where the next biennial conference will be held, but next year there will be an event focusing on legal updates, in a slightly warmer location – Cyprus. And yes, I am willing to accept commissions to go and report on it.