CMJA NEWS The Newsletter of the Commonwealth Magistrates’ and Judges’ Association

VOLUME 48 November 2020

Sentencing Guidelines. We are grateful for the first webinar is available below. EDITORIAL to the British High Commission in Banjul The Global Judicial Integrity Network of in providing support and assistance for the UNODC has also organised a series This is the second issue which has been both these seminars and to H.H. Judge of webinars. The videos of the UNODC published during these difficult times. Martin Picton for his facilitation of both webinars are available on the UNODC’s It seems strange that we have all been sessions. The CMJA is also assisting in website at: under various degrees of lockdown https://www.unodc.org/ji/ other areas in the capacity building of since March 2020 and yet judicial multimedia/index.html the judiciary in . officers around the Commonwealth have The CMJA has continued during still been able to adapt and work with The CMJA has continued to monitor these difficult times to monitor judicial new systems and procedures that have the impact of COVID 19 on judiciaries, independence and human rights been introduced. judicial officers and their families across issues across the Commonwealth. It the Commonwealth. In July 2020, we is dependent on information from its I would normally be reporting at this were very sad to learn that one of our members as to the issues that are time on the discussions and conclusions long standing members, Justice Chaka arising in different jurisdictions in relation of the CMJA’s Annual Conference Makaoone, of Lesotho had passed to threats against judicial independence which this year was due to be held in away from the virus and we sent and integrity. Whilst we are not a Cardiff, Wales. Whilst this conference our condolences to the Judiciary of trade union, we do examine each case was cancelled in April 2020, it was Lesotho. We hope that all our members and assess whether it is indicative of encouraging to receive a letter from our are staying safe. The CMJA has also a general threat to the judiciary as a Patron and , continued with its COVID 19 Forum whole. Since the lockdown we have Her Majesty, The Queen wishing us which is still available to members and issued a number of statements relating all the best for our 50th Anniversary. th we would encourage you make your to threats in Malawi and Sri Lanka. Celebrations for the 50 Anniversary contribution to the Forum or use this have been postponed and it is hoped to inform us of how you are dealing The internal governance work of the can be resurrected at the CMJA’s next with all the new issues arising from the CMJA has continued throughout Triennial Conference due to take place pandemic. Please contact the CMJA for these difficult months and the CMJA’s in Accra, Ghana from 12-17 September information on how to access the Forum. Executive and Steering Committees 2021. Please note the dates in your have met on a quarterly basis. On diary. The theme of the Conference It was also with great sadness that the 12 September, the CMJA’s first virtual is: “Access to Justice in A Modern CMJA lost a good friend in Mrs Patsy Council Meeting was held with 23 World”. Robertson in August 2020. Patsy, trustees attending the meeting. a journalist from Jamaica who was As far as projects are concerned, in Director of the Information Division of The Council also thanked Sheriff July 2020, the CMJA launched “The the under Douglas Allan for his long standing work. Principles on Funding and Resourcing 3 Secretaries-General, was a stalwart the Judiciary in the Commonwealth”. of the Commonwealth promoting the These Principles are available on the Commonwealth fundamental values CMJA website at: www.cmja.org. As in whatever she did. She was a good CONTENTS readers will be aware, the CMJA has friend of the CMJA and contributed to 1 Editorial been concerned for many years about the resurgence of the work the CMJA 2 President’s Message the decreasing funding of the judiciary undertook on Women and Girls Rights, 3 Queen’s Message for 50th and we are concerned that this funding involving the Commonwealth and the Anniversary will be even further reduced with the CMJA in the Beijing Conference on Commonwealth Webinars on the economic downturn which is inevitable Women in 1995 when she was senior 3  Rule of Law as a result of the pandemic. These are advisor to the UN at the time. She also important Principles that are in line with got the current CMJA Secretary General 4  Judicial Independence and international standards. involved in the fight for widows’ rights Human Rights Issues through Widows Rights International. 6 Commonwealth Chief Justices The CMJA has been continuing to Roundtable work with the Gambia judiciary in the There have been a number of webinars 6 CMJA-SIFoCC Virtual Seminar development of its capacity. In July 2020 that have been held since the beginning 7 UNESCO Guidelines on and September 2020, the CMJA and the of the pandemic and the CMJA has Freedom of Expression Judicial Office of England and Wales participated in a number of these Diary of Events undertook virtual seminars with judicial organised by the Commonwealth or 7 New Members officers in the Gambia, on advancing the international organisations. A copy of 8 work commenced in January 2019 on the paper prepared by the President

CMJA NEWS – Volume 48: NOVEMBER 2020 1 Douglas, who has been on the Steering Committee since 2000 and chaired the Steering Committee since 2006, retired as Chairman of the Committee PLEASE DON’T FORGET TO PAY at the Council Meeting in September. However, he has agreed to stay on for YOUR MEMBERSHIP ON TIME a year to assist the new Chairperson, The CMJA is dependent on timely payment of its Sheriff Andrew Normand, who has been membership dues in order to undertake its activities in a member of the Steering Committee for promoting and protecting judicial independence a number of years, so that Douglas’ vast experience and advice is not lost to the We urge Member Associations and Individuals to pay their CMJA and he will continue as a CMJA dues on time. You can pay through the CMJA website at: Council Member until his term ends in Ghana in 2021. www.cmja.org

On 3 November 2020, the CMJA worked with the Standing International Forum on Commercial Courts (SIFoCC) which is administered by the Judicial Office of PRESIDENT’S MESSAGE You will have received a copy of England and Wales, on a virtual seminar “The Principles on the Resourcing on “Commonwealth Commercial and Funding of the Judiciary in published in Courts - Establishing the new the Commonwealth” July 2020. The CMJA is conscious normal”. that these are precarious times for judiciaries across the world in the face of economic downturns and it STOP PRESS is important that measures taken for “efficiency” or “economic” reasons The CMJA is delighted to inform readers during these difficult times should of two good news stories coming from not undermine the independence of Malawi. the CMJA President, Justice the judiciary or our responsibility as Charles Mkandawire was elevated to the guarantors of the fundamental rights Supreme Court on 20th October 2020. and the rule of law. It is important that we stand firm and continue to ensure We also congratulate all those who were the good administration of justice elevated to the Supreme Court and High I am taking this opportunity, with the across the Commonwealth in the face of Court recently in Malawi. publication of the Newsletter, to follow threats against the rule of law and the up on my letter of April 2020, which independence of the judiciary. was circulated to members when we were in the first weeks of the global As you will be aware from the email pandemic and thought we would be updates that the CMJA has been back to near normal activity by this sending out over the last few months, time. We hope, more than ever, that our the CMJA secretariat has continued to friends, family and work colleagues from work throughout these difficult times. It around the Commonwealth are safe and has continued to monitor threats against remaining positive despite the continued judicial independence and has produced challenges we all face. a number of statements with other associations which were circulated to We were disappointed to have to cancel members and are available on the CMJA our Conference in Cardiff, Wales this website. The CMJA held its first virtual year and to put on hold our celebrations Council Meeting in September 2020 and for our 50th Anniversary. However, we over 23 Council Members attended this We also congratulate Justice Healey are working towards celebrating this meeting and we received a number of Potani, Justice Ivy Kamanga, Justice important milestone in our 51st year so reports from our Council Members in Redson Kapindu, Justice Dingiswayo keep in touch and we will let you know the six regions on how their jurisdictions Madise and Justice Michael Tembo of how we will be celebrating such an were coping in the light of COVID 19. Malawi who took the decision to annul important event. In addition, our Treasurer reported on the May 2019 Presidential elections the finances of the CMJA. Like many in February 2020 and have been We have all had to adapt, in an charitable organisations, the CMJA is awarded the prestigious extremely short period of time, to using extremely dependent on members paying new technologies or procedures to Prize in recognition of the “courage their subscription fees, especially this ensure the safety and protection of users and independence in the defence of year when the CMJA had to cancel its of our courts. We recognise that it Conference. We would kindly urge democracy”. The Chatham House Prize hasn’t been easy in many jurisdictions, you to ensure that any outstanding is an annual award for “the person, especially in those where access to subscription arrears are paid a quickly persons or organisation deemed by the internet is not universal or where as possible so that we can continue to members of Chatham House to have connections and power supplies are support you for the next 50 years! made the most significant contribution to poor. However, it is important that we the improvement of international relations all continue to fulfil our responsibilities as Charles Mkandawire in the previous year” judges and magistrates to society. President

2 CMJA NEWS – Volume 48: NOVEMBER 2020 I recognised the fact that in these MESSAGE FROM THE difficult times, judicial officers will ensure CMJA’S PATRON that they protect the most vulnerable members of our society and will continue In July 2020, the CMJA received a to serve their fellow citizens. message from Her Majesty, The Queen, Head of the Commonwealth and Patron I, however, cautioned that, with of the CMJA from Windsor Castle where the restrictions imposed due to the she was under self-isolation: pandemic, governments should not use this opportunity to undermine the “On the occasion of the Fiftieth role of the judiciary who continue to Anniversary of the Commonwealth be guarantors of the rule of law and Magistrates’ and Judges’ Association, fundamental rights and that the CMJA I send warm greetings to all of your is keeping vigilant to any developments Members. in the Commonwealth which might As your Patron, I was pleased to learn jeopardize the independence of the that you have worked together to judiciary in these difficult times. overcome the recent challenges faced and have continued to provide good As a result of COVID-19 pandemic, we administration of justice across the have noticed that many governments Commonwealth. including Malawi, have immediately responded to the pandemic by putting As you mark this milestone in the in place several measures. These history of the Association, I send my measures include: best wishes to you all for a memorable the Attorney General of Jamaica and Anniversary. Mr Brian Spears, the President of the • Legislative actions (passing of laws Commonwealth Lawyers Association. and regulations, orders/decrees); ELIZABETH R” The session was chaired by the Mr Luis Franceschi, the Head of the • Executive orders/decrees; Governance and Peace Division of the Commonwealth Secretariat. • Other practices that have not been COMMONWEALTH codified. The Following is the presentation that the WEBINARS ON CMJA President prepared for the Session These have included actions taken by THE RULE OF LAW although he was not able to present the governments using existing legislations- full version: for example prosecuting journalists and The Commonwealth Secretariat has citizen reporters and protesters. 1. What Have Been The Most been organising a series of Webinars on Noticeable Effects Of The Covid- the Rule of Law. The CMJA President Most of these government measures 19 Pandemic On The Rule Of Law spoke during the Webinar on 28 July are in the form of executive order or Issues In Your Country? 2020 and Sheriff Alistair Duff spoke at proclamation. There are declarations the request of the CMJA on 18 August It is an honour for me to participate of state of emergency, national health 2020. These videos of these webinars in the first WEBINAR on COVID-19 emergency or national disaster. For are now available at: organised by the Commonwealth example; Secretariat. I have been invited to focus 28 July 2020 – Impact of COVID-19 on I. , eSwatini, The Gambia, on the subject matter with particular the rule of law: https://thecommonwealth. emphasis on the experience from Lesotho, Mozambique, Namibia and org/media/event/event-rule-law-webinar- my Country. Let me however point it Sierra Leone have all declared state series-one out on the outset that as President of of emergency; the Commonwealth Magistrates’ and 18 August 2020 – Access to justice: II. Malawi, and Zimbabwe Judges’ Association (CMJA), I represent https://thecommonwealth.org/ have declared national state of rule-law-webinar-2-how-has-covid-19- a very wide constituency. It will therefore be difficult for me to confine myself to disaster; affected-access-justice-commonwealth my experience in Malawi. III. Botswana, The Gambia, Kenya and 15 September 2020 – Digitisation of Realising the impact of COVID-19 in our Uganda declared (Public) health courts: https://thecommonwealth.org/ respective jurisdictions, as President emergencies. rule-law-webinar-3-new-age-online- of the Commonwealth Magistrates’ and courts-has-covid-19-pandemic-ushered- Judges’ Association (CMJA), on 6th April Most of the measures heavily curb era-develop-justice-through 2020, I communicated with members freedom of movement and peaceful assembly. The majority of these THE IMPACT OF COVID 19 ON of CMJA in all the six regions on CMJA THE RULE OF LAW IN THE and COVID-19. I reminded the members countries had fully or partially prohibited COMMONWEALTH that I was aware that judicial officers are gatherings. Some have imposed continuing to operate in the face of rising curfews. The CMJA President spoke at the first challenges, to ensure that the good event which was held on 28 July 2020 administration of justice continues in the Governments are increasingly cracking and which also included, as speakers: Commonwealth and that some judicial down on dissent by using ‘fake Baroness Patricia Scotland, the officers were putting their lives on the news’ or disinformation charges to Secretary General of the Commonwealth, line as a result by attending court on a suppress public criticism of a particular The Rt. Hon Mrs Marlene Malahoo Forte, daily basis. government’s response to the pandemic.

CMJA NEWS – Volume 48: NOVEMBER 2020 3 2. What Innovations Coming Out Of 3. How Has The Covid-19 Pandemic JUDICIAL The Pandemic Does My Country Affected The Administration Of Hope To Integrate Into The Post Justice In My Country? INDEPENDENCE ISSUES Covid-19 ‘Norm’? • There is a general psychological The judiciaries oversee and check the fear for court users to come to court; INDIA Executive and legislators’ action in the • Judicial officers and staff feel that In August 2020, the CMJA was informed ongoing context of COVID-19. In many they are not adequately protected; that a prominent Indian lawyer, Prashant jurisdictions, Chief Justices have now Bushan, had been found in contempt • There is a feeling that concentration issued Practice Directions to make sure of court by the Supreme Court for of protective measures are more that courts remain relevant to current attempting “to scandalize the entire focused on staff who are in the trends. In most jurisdictions now, the CJs institution” by posting tweets criticising health sector without taking into have allowed online arguments, virtual the Chief Justice and previous senior account that judicial services are courts, video teleconferences etc. For judges in India. After the case sparked also an essential service; example, in Kenya, the Court of Appeal a discussion on freedom of speech has successfully conducted several • Court business has drastically and judicial independence in India, the appeal hearings. In Malawi, the High reduced and in turn, there will be a lawyer was given the choice to pay a Court Sitting as a Constitutional Court is very massive backlog. fine of 1 Rupee or face 3 months in jail. currently hearing a COVID-19 lockdown His lawyer paid the fine on his behalf. • As most of our courts have very poor case using online system. Online infrastructure, social distancing is a hearings are also happening in Uganda JAMAICA problem and cases cannot be heard; and the list is endless. In August 2020, the Chief Justice of • Access to justice has been greatly Jamaica issued a statement condemning Judiciaries in the post COVID-19 period affected because most Malawians threats against judges which had will continue to operate like that. In cannot afford to file their cases on line; appeared on social media. This followed order for the judiciaries to cope with • Due to poor infrastructure, it’s a judgment of the Supreme Court which the challenges of COVID-19, there is difficult to have virtual courts; found that a primary school had not need for adequate funding. Funding breached the constitutional rights of a is one of the biggest challenge that • Although we have all these five year old girl who was denied access most judiciaries in the Commonwealth challenges, the judiciary has put in because of her dreadlocks following the place several measures to mitigate encounter. Whilst it is appreciated lifting of a temporary injunction against the situation; that at national level there are several the school denying the girl’s access in competing factors for funding, but • The judiciary is now only handling 2018. Whatever the merits of the case, most judiciaries have not been on the urgent matters. the Chief Justice, in his statement he receiving end. In most cases, justice stated: “The abuse of Judges by way delivery and rule of law issues have not 4. Is The Commonwealth Ready For of social media and other platforms is been a priority for most governments. Digitised Legal World? to be deplored. This practice is to be condemned.” He went on to say: The Commonwealth (Latimer House) • Information and communication Principles on the Accountability of and technologies can play an important “Abuse of Judges presents a grave Relationship between the three branches role in the administration of justice in threat to judicial independence and of Government is very fundamental when the Commonwealth; sets the stage for democracy to be it comes to the issue of funding. • ICT can increase transparency, undermined. The publication of pictures efficiency and accountability of of Judges in context where violence is At the CMJA Council meeting in delivery of justice; being suggested is unacceptable. While September 2019, it was agreed that expressing disagreement, members of the CMJA would develop a number • There are considerable variety the public are urged to demonstrate of recommendations in relation to the of tools and ways to harness restraint. As stated earlier the Judiciary funding of the judiciary following the the possible effects of digitized of Jamaica accepts and welcomes resolution to resources for the judiciary technology and there are examples criticisms”. taken at the last Triennial Conference all over the Commonwealth of the held in Brisbane, Australia in September successful integration of ICT into The case is currently being appealed 2018. In July 2020, a set of Principles digital strategies; and the lawyer for the girl and her parents is claiming hair discrimination, on the Funding and Resourcing of the • New technologies like e-filling, virtual judiciary have now been developed. an increasingly contentious issue around courts, video links and many more the globe. These Principles are now of particular are now part of any comprehensive importance as Commonwealth digital technology strategies; KENYA Countries are now tackling • The magic word is adequate funding consequences of COVID-19 pandemic In September 2020, it was announced for the judiciaries; and in the light of the global economic that the Law Society of Kenya down run that this has caused. • There is need to invest in ICT training; was seeking clarification from the government why it was continuing The implementation of the • Resource mobilization for modern to flout court orders. The lack of Commonwealth (Latimer House) equipment; enforcement of court orders has been a Principles is more important than ever • Infrastructure development of the major issue in Kenya since the Supreme in the current climate where emergency justice sector. Court annulled the 2016 elections and measures have curtailed human rights has brought the Kenya judiciary in and the rule of law in some of the All in all, I would say that the conflict with the current government. In Commonwealth jurisdictions. Commonwealth is ready to digitize. a report in The Nation on 1 September

4 CMJA NEWS – Volume 48: NOVEMBER 2020 2020, the President of the Law Society the President to dissolve Parliament if that one of the pillars he would be of Kenya, Nelson Havi indicated the latter “fails to enact legislation in concentrating on during his term of that they Society would first seek to accordance with an order”. This he duly office would be the strengthening and establish why government officials are did in his advisory of 21 September 2020. capacity building of the independence unable to comply with court orders A petition disputing the advisory note by of the judiciary. or “at least have him explain why the the Chief Justice is due to be heard by orders are disregarded”. It would then a five judge bench in November 2020 SRI LANKA compile all cases where government although the petitioners are appealing the In September 2020, the CMJA, together officials have failed to comply with composition of the bench. with the CLA, CLEA, Commonwealth court orders and file a composite Journalists Association and Judges case, seeking a declaration that the LESOTHO for Judges (Rechters voor Rechters) concerned officials are unfit to hold The CMJA is also monitoring a similar issued a Statement (www.cmja.org) public office. “We will further escalate issue in relation to the standoff between on the Proposed 20th Amendment it and, where possible, file a petition to the judiciary and the government to the Constitution which would, if Parliament or county assemblies, and following a dispute between the successfully passed in Parliament, ask for impeachment of the concerned Judicial Services Commission and effectively diminish the independence of ,” he said. The Chief Justice has officials the government over appointments in the judiciary in Sri Lanka. Readers may indicated that “ Disobedience of court Lesotho. At the end of August 2020, recall that in 2010, Sri Lanka passed orders is a serious issue and abuse the Judicial Service Commission met the 18th amendment to the Constitution of the Constitution. When government to consider new appointments and five which set up a Parliamentary Council officials throw court orders as pieces of names were put forward for appointment but which in effect gave the President papers what are you telling the people? by the King. However, the Minister of vast powers to appoint the Chief Justice, Are there two sets of laws for leaders Justice queried the legitimacy of the Supreme Court judges and Court of and common mwananchi [citizens]? It’s JSC and the list of names as only two Appeal judges as well as the members serious and can lead to anarchy” of the four members of the JSC had of the Judicial Services Commission. The provisions in the proposed 20th One of the orders that that has not sat in order to make the decision on Amendment to the Constitution reflect been resolved as yet, relates to the the appointments. The JSC responded similar provisions in the controversial failure of the President to agree to the quoting the legislative provisions under 18th amendment. It was disappointing appointment of the 41 judicial officers which the JSC operates and pointing to note that the Supreme Court of Sri since their names were submitted by the out that it had acted constitutionally and Lanka on 9 October 2020, decided, JSC to him in August 2019. In February within the law and the JSC Rules allowed following a petition brought by a number 2020, the High Court indicated that the for a quorum of two people provided that of parties against the proposed Bill, President had 14 days to comply with they agreed on the subject of the day. that the Bill did not contravene any the judgment but to date this has not A political party has now taken this case entrenched provisions in the Constitution happened. The President had claimed to the courts stating that until there is a but that certain clauses might require there were some integrity issues with change to the law (which the Minister a Referendum to be held unless these some of the judges but as yet these of Justice has tabled in parliament) clauses are amended. Those clauses have not been explained to the JSC the current system which does not include the provision removing the or to the Chief Justice himself. The require approval by the Minister President from being accountable Kenyan judiciary badly require these should continue. The Minister had indicated in the press that only “acting to Parliament, the immunity of the judicial officers to be appointed, the appointments” should be made in the President from lawsuits, as well as giving Chief Justice pointed out in August this interim until is Administration of Justice the power the President to dissolve year when he indicated that there are Bill 2011 is approved by Parliament as parliament only after one year in office over 400,000 cases filed annually by part of the wider reforms recommended not to mention the powers he would have Kenyans in the courts. The judiciary was by SADC. over appointments of the judiciary. only able to dispose of 300,000 due to a low number of judges and magistrates MALAWI TANZANIA currently serving. It was very sad that one of the lawyers who was to be In June and August 2020, the CMJA, In July 2020, The African Court of appointed has recently passed away in together with the CLA, CLEA and Human and Peoples’ Rights held in a car accident. Rechters voor Rechters (Judges for that the Tanzania constitution had Judges) issued two Statements (www. breached the African Charter on In September 2020, the Chief Justice cmja.org) following the threats against Human and Peoples’ Rights as well as issued an advice to the President to the Judiciary and the Chief Justice international law by denying the right dissolve Parliament having received a in Malawi prior to the holding of the of citizens to bring a case challenging number of petitions from citizens claiming Presidential elections in August 2020. the presidential elections to court. The that the Parliament failed to enact At the inauguration of the new President, Constitution provides that no court within legislation to implement the two thirds the public gathered to cheer and Tanzania can inquire into the election gender rule as outlined in Article 27 of clapped the judges who attended the of a presidential candidate, once the the Constitution. The Supreme Court ceremony for their strength and courage electoral commission has declared a had previously issued an advisory notice in the face of adversity. winner. The lawyer who brought the on the issue and advised parliament case on the basis that his right to non- to complete this task by the 27 August Following the election of the new discrimination had been infringed by 2015. As this had not been done, the President, the CMJA sent a letter to the the constitutional provision because Chief Justice duly advised that the Chief Justice congratulating him and the other litigants could ask the courts to President should dissolve Parliament. judiciary on their fortitude in the face of consider any allegation. However, those The Chief Justice used his powers under the previous months’ of pressure. The who wished to challenge the election Article 261 of the Constitution which new President, , in his of a president were barred from going states that the Chief Justice can advise State of the Nation address indicated to court. The government of Tanzania

CMJA NEWS – Volume 48: NOVEMBER 2020 5 challenged the jurisdiction of the court The Judiciary of England and Wales led technology and a session on business as the lawyer had not “exhausted by Lord Justice Flaux, Lead Judge for and human rights issues that had arisen internal processes” before bringing the International Relations and Lord Justice during the last few months. case to the African Court of Human and Dingemans, CMJA Council Member, Peoples’ Rights. However, he claimed have been holding a number of online Many jurisdictions had closed their that the case would not receive a fair discussions since the 29 September courts for quite a few months and hearing in domestic courts. Tanzania with international partners, including had only resumed when lockdowns was urged to change its constitution Commonwealth countries on the use had eased. Court cases had been within 12 months and the African Court of technology in transforming justice adjourned, especially those dealing ordered the judgment to be published systems in the future. with criminal matters although courts on the websites of the Judiciary and had been able to introduce emergency Ministry of Justice. measures and more flexibility and efficiencies. Commercial courts were As of November 2020, individuals and CMJA- SIFoCC VIRTUAL more able, in most countries, to adapt NGOs will no longer be able to bring to working remotely and moved more human rights cases to the African SEMINAR towards paper hearings. In some Court of Human and Peoples’ Court jurisdictions, such as the Gambia, this Earlier this year the CMJA was as Tanzania withdrew from the African had generated a better understanding approached by the Judicial Office of Charter Protocol which allows such and spirit of cooperation between the England and Wales (which acts as petitions in November 2019. Tanzania legal profession, the judiciary, and secretariat to the Standing International has the highest number of cases stakeholders. In addition, the use of Forum on Commercial Courts (SIFoCC)) pending against it in the Court, most of virtual hearings had helped with access with a view to cooperating on a virtual which relate to the right to a fair trial. to justice especially in some remote seminar building on some of the issues areas of countries. However, it was raised at the Chief Justices’ Roundtable evident that elsewhere, lawyers, who mentioned above. are not always considered as part of the COMMONWEALTH CHIEF “emergency services”, were frustrated The aims of the virtual seminar were to: JUSTICES ROUNDTABLE through the lack of work especially • To build relations between in criminal and civil matters because of restricted access to courts due to Although the CMJA had to cancel Commercial Courts in the lockdowns. There were also differences the meeting of Chief Justices of the Commonwealth; in the way individuals had adapted to Commonwealth in the wings of the the introduction of new technologies and CMJA Conference, the Lord Chief • To share experiences and this had revealed, a generational gap Justice of England and Wales held a ideas around the ways in which with some judicial officers and lawyers virtual roundtable with some of the Chief Commercial Courts in the having to be retrained quickly on new Justices of the Commonwealth of 29 Commonwealth are managing new technologies. It was also evident that September 2020. The main focus of ways of working; and the public also needed assistance the meeting was to share experiences • To develop the commercial court and some jurisdictions had introduced of how the different jurisdictions were dialogue post-covid around separate rooms within their court responding in the face of COVID 19. business and human rights. buildings with internet connectivity that The virtual roundtable included the allowed access to hearings for those Chief Justices from the Gambia, India, Judicial Officers from the following who had no connectivity or access to Malaysia, Malawi, New Zealand, Northern countries participated in the seminar: smartphones. There had also been Ireland, Nigeria, Scotland, Singapore, The Gambia, New Zealand, India, an adverse effect on women who were Rwanda, Tanzania, Uganda and Zambia. Malaysia, Tanzania, Australia, Kenya, expected to fulfil their caring duties A recurring theme during the Meeting The East African Court, Singapore, and school their children whilst working was the use of technology. In a speech Uganda, Brunei, , and at home. Open access to courts had to the virtual Legal Wales Conference Cyprus. Several presentations were also been restricted although some held on 9 October, the Lord Chief Justice given by judicial officers around the jurisdictions had allowed members of the spoke about the Roundtable and said: Commonwealth who were invited to public, on application, to “attend a court “One of the fascinating insights was speak for a maximum of 3 minutes each hearing virtually”. The media had also that whether, in advanced economies or and the virtual seminar was limited to 90 been given access in some territories those developing, a rapid enhancement minutes. Mr Justice Robin Knowles, the to court hearings and press statements of the use of technology had been the Judge with day to day responsibility for on cases had been issued regularly. only way to ensure that the wheels of SIFoCC, chaired the meeting. The fact that some virtual hearings were justice continued to turn; and as judges, available now online had assisted in practitioners and other court users have CMJA Council Member, Mr Justice creating better understanding of the become familiar with its use initial doubts James Dingemans, Court of Appeal processes and constraints faced by are being dispelled”. The Lord Chief Judge made the introductory remarks the judiciary. Not all jurisdictions were Justice also mentioned the cancelled and mentioned that there had been rapid happy to have live streaming of their Cardiff Conference: “I was sorry too not and investment in new technologies hearings however, although some courts to be able to welcome hundreds of judges since March 2020 in England and Wales such as the UK Supreme Court had and magistrates from across the world to cope with the adverse effects on the done this for some years. in Cardiff for the 50th anniversary of the courts of COVID 19. Commonwealth Magistrates’ and Judges’ There was concern that going forward, Association. That should have happened The Seminar was divided into 3 separate following the end of the pandemic, cost- in September. It became impossible, but sessions: A session on pre-hearings cutting processes might be introduced, we are working with the CMJA to bring and managing resulting backlogs, a and virtual hearings might remain in an annual conference to Wales before session on new normal procedures are place for certain cases. Courts were too long”. being explored for courts with respect to part of the community and it was also

6 CMJA NEWS – Volume 48: NOVEMBER 2020 difficult to hold virtual hearings. Not only Since the outbreak of the COVID-19 questioning by law enforcement, was it tiring for those who participated pandemic, fundamental rights such limitations to report on the situation in such hearings but both lawyers and as freedom of expression, the right of and possible disruptions in the judges felt that assessing behaviour or access to information, and the right to operation of hospitals, health care body language by others participating privacy have been threatened across the facilities, public transportation or at the hearings was lost because of the world. Many States of emergency have other public spaces. They must limitations of IT systems. It was also been declared in many jurisdictions and also be protected from attacks and adversely affecting those judicial officers this has resulted in serious restrictions intimidation by public officials in and lawyers who were isolated at home. of several human rights which have led order to avoid the dissemination The long-term affect on the health to cases appearing before the courts of non-official narratives and of those who were attending virtual in a number of countries. For example, information, on the broad basis of hearings was a concern. in April 2020, the Malawi High Court the existence of a health emergency temporarily blocked the lockdown and exceptional situation. Human rights had also come under measures imposed in the country as attack during the last few months. The the country had failed to put in place • Journalists’ work should be rights to assembly, free speech and measures to assist poorer citizens considered as the provision of an unionise been affected and strikes had dependent on work and trade. essential service and protected and been banned in some jurisdictions). The enabled accordingly, including by right to work had also been affected In August 2020, UNESCO produced granting access to protective masks with government emergency legislation Guidelines on the role of judicial and other relevant gear. being put in place and many companies operators in the protection and going out of business or reducing promotion of the right to freedom of • Judicial operators, particularly their work force or salaries due to the expression in relation with the COVID-19 judges, could pay special attention economic downturn. It had also been pandemic. https://unesdoc.unesco.org/ when reviewing cases related to addressing measures to fight evident that some unscrupulous factories ark:/48223/pf0000374208 had produced sub-standard santising disinformation, guaranteeing that equipment and this had put lives in UNESCO recommended that: international standards on freedom jeopardy. The UN Guiding Principles on of expression and privacy are fully Business and Human Rights provide that • National courts and judges are respected within those measures. corporations needed to act responsibly, the first instance in the protection • When considering possible hate with due diligence to respect human of human rights and play a speech cases, it is the responsibility rights norms, avoid environmental fundamental role in reviewing the of national judicial operators, to degradation and take responsible decisions regarding the declaration make a proper assessment of each action to ensure their activities did not of state of emergency and/or piece of content on the basis of jeopardise the rights. exceptional measures affecting fundamental rights. principles, rules and conditions established in international law. • The current context of public health UNESCO GUIDELINES crisis requires that public authorities, • Health data collection must be including the judiciary, provide accompanied by strict personal ON FREEDOM OF special protection to the different data protection guarantees and be EXPRESSION DURING angles of the exercise of the right time limited while also promoting the to freedom of expression and public’s right to know the outcomes COVID 19 freedom of information. Freedom of of such collection. expression and unfettered access • Justice systems need to incorporate to public information are to be the necessary tools which will allow considered as powerful instruments for the continuation of the provision to fight the pandemic and protect of this fundamental public service the health of the population. under the circumstances of the • During a public health crisis, pandemic. state authorities - including the judiciary – must guarantee that the information they provide to the DIARY OF EVENTS public is accurate, or accurate as 22-27 FEBRUARY – CASE possible framing them appropriately MANAGEMENT AND ETHICAL as uncertain or evolving. These BEHAVIOUR – A VIRTUAL authorities should also provide COURSE. Please contact Ade clear and honest guidance. Failure Arimoro for more information: to comply with this principle may [email protected] represent a violation of citizens’ right to access to information. 12 SEPTEMBER 2020 - Commonwealth Chief Justices • In a moment of global pandemic, Meeting (by invitation only), Accra, access to the Internet is a critical Ghana element of healthcare policy and practice, public information and 12-17 SEPTEMBER 2020- CMJA even the right to life. TRIENNIAL CONFERENCE ON “Access to Justice in a Modern • Journalists shall be properly World”, Accra, Ghana protected from arrests and/or

CMJA NEWS – Volume 48: NOVEMBER 2020 7 Support the Rule of Law with a Legacy to the CMJA

Why Leave a Legacy to the CMJA?

The CMJA is a charitable organisation which has been working towards achieving respect for the rule of law, fundamental values and the respect for human and peoples’ rights across the Commonwealth for 50 years. All Gifts to the CMJA will assist the Association to achieve its objectives: • To strengthen its ability to fulfil functions of upholding the Rule of Law throughout the Commonwealth; • to support the magistracy and the judiciary by providing moral and practical support to judicial officers facing improper challenges to their independence; • to give advice and training and to provide judicial mentoring so that judiciaries across the Commonwealth can improve standards.

HOW DO I GET IN TOUCH? For more information or advice, or for suggested wordings for other types of gift, please contact Uganda House, 58-59 Trafalgar Square, WC2N 5DX, Tel: (44) 20 7976 1007 Email: [email protected] Web address: www.cmja.org

NEW MEMBERS CANADA INDIA • Justice Myra Bielby • Mr Robert Prince NEW MEMBERS • Justice Robert Maranger NIGERIA • Hon. Mrs. Justice Jane Inyang ENGLAND AND WALES We welcome the following new • Master John M A Dagnall MALAYSIA Members as well as some of our former • Datuk Lim Thein Phin Kevin members back to the CMJA: • District Judge Timothy Godfrey • Datuk Seri Shiok Fu Teo • Mrs Suzanne M. Parkinson AUSTRALIA PAKISTAN • Mr John-Ross Weir • Mr AK Wang Chas Wang • Justice Rehmat Ali CAMEROON GHANA SCOTLAND • Judge Emmanuel Nkea • Justice Kwasi Anokye Gyimah • Mr Pino Diemidio

the intricacies of case management challenge the norms of judicial ethics CMJA VIRTUAL COURSE principles and the practicalities of judicial and expose you to new ways of handling ON CASE MANAGEMENT ethics in both civil and criminal cases. both criminal and civil cases in a new and Our highly experienced judges will take unpredictable environment. As this is a AND JUDICIAL ETHICS you through judgement writing in plain virtual programme conducted on Zoom or English, principles of judicial ethics and Microsoft Teams, there will be an exciting Whilst the CMJA has had to postpone practical application, efficient pre-trial opportunity to observe the proceedings of the above course, which was due to preparation, using multi agency approach a live UK court and what happens behind take place in October 2020, we are to enhance case progression as well as the scenes. looking forward to holding this course the appropriate use of special measures virtually in the week of 22 February for the vulnerable. The programme also Register now by contacting Ade Arimoro 2021. The CMJA has put together a provides a collegial space for participants on [email protected] comprehensive and enlightening virtual to investigate and tackle challenges within programme, in conjunction with UK their multi-jurisdictional environment. Civil Service College. The programme This highly participatory programme will has been specially designed to explore

8 CMJA NEWS – Volume 48: NOVEMBER 2020