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THE COMMONWEALTH LAWYER Journal of the Commonwealth Lawyers’ Association December 2017 Vol 27, No 3 Mediation and the Rule of Law Sundaresh Menon Forum Competition in Religious Conversion Cases in Malaysia Arun Kasi Armed Drones and International Law Human Rights Institute, International Bar Association When to Recuse and When Not Austen Morgan CLA President with Chief Justice of Rwanda Brexit Bernardand Asylum McCloskey Law THE COMMONWEALTH Hon Life Presidents Colin Nicholls QC (England & Wales) LAWYER Dato’ Dr Cyrus Das (Malaysia) Soli Sorabjee (India) Journal of the Commonwealth Lawyers’ Association President R Santhanakrishnan (India) ISSN: 0265-8100 Vice President Brian Speers (Northern Ireland) Editor: Venkat lyer, Barrister-at-Law Honorary Treasurer Laurie Watt (England & Wales) Council Nene Amegatcher (Ghana) David Bekker (South Africa) David Greene (England and Wales) The Commonwealth Lawyers’ Association exists to Venkat Iyer (Northern Ireland – ex officio) Gordon Jackson QC (Scotland) maintain and promote the rule of law throughout the Fiona McLeod SC (Australia) Commonwealth by ensuring that the people of the Peter Maynard (Caribbean) Commonwealth are served by an independent and Saima Nambinga (Namibia) Vimbai Nyemba (Zimbabwe) efficient legal profession. Laurie Pawlitza (Canada) For more information about the CLA please visit the Steven Thiru (Malaysia) Association’s website at: Michael Todd QC (England and Wales) Alexander Ward, Past President (ex-officio) <www.commonwealthlawyers.com> Mark Woods (Australia) Executive Committee Katherine Eden Haig (CEO & Secretary General) Mia Essien Ron Heinrich Mohamed Husain Mickael Laurens The Commonwealth Lawyer is published thrice a year. Members of the Jamie Millar Tim Otty QC CLA receive it free of charge. Annual subscription for non-members (3 R Santhanakrishnan (President) issues) - £25. Subscription enquires must be addressed to the Secretary Peter Slinn General in London. Brian Speers (Vice President) Mark Stephens CBE Comments and contributions are welcome. These should be sent to the Alexander Ward Laurie Watt (Hon. Treasurer) Editor at the following address: The Commonwealth Lawyer Dr Venkat lyer Dr Venkat Iyer (Editor) School of Law Ulster University at Jordanstown CEO and Secretary General Katherine Eden Haig Newtownabbey, BT37 OQB, United Kingdom Phone: (44-28) 90368876 Commonwealth Lawyers Association Fax: (44-28) 90366847 88 Kingsway, London WC2B 6AA E-mail: [email protected] Phone: +44 20 7841 1075 E-mail: [email protected] THE COMMONWEALTH LAWYER Journal of the Commonwealth Lawyers’ Association December 2017 Message from the President 4 R Santhanakrishnan Editor’s Note 5 Venkat Iyer Articles Mediation and the Rule of Law 6 Sundaresh Menon Brexit and Asylum Law 13 Bernard McCloskey Forum Competition in Religious Conversion Cases in Malaysia 19 Arun Kasi Armed Drones and International Law 33 Human Rights Institute, International Bar Association When to Recuse and When Not 48 Austen Morgan Book Reviews 50 News and Announcements 55 [Cover photo: R. Santhanakrishnan, President of the CLA, with Sam Rugege, Chief Justice of Rwanda] Message from the President The Opening of the Legal Year in London at the beginning and lawyers representing law firms from across East Africa of the October 2017 was an opportunity to meet Bar Leaders who were meeting separately to discuss issues affecting them, from across various Commonwealth jurisdictions. The formal under the umbrella of EALS. This conference was another discussions and informal interactions centred around issues opportunity for a good interaction with the legal fraternity concerning the legal fraternity, including the topics like gender, from across the jurisdictions of East Africa. appointment of judges, independence of the judiciary etc. During the last week of November I attended the Meeting the President of Pan African Lawyers Union and the 20th Annual Conference of the Rwanda Bar Association. representatives of the Law Society of England and Wales during Inaugurating the conference, the Law Minister of Rwanda the event led to my visit to Commonwealth jurisdictions in traced the history of the Bar, post the 1994 genocide. The Bar East Africa later in October and subsequently in November. Leaders of yesteryears were felicitated for their contribution in shaping the profession. I had fruitful interactions with the Presidents of the Law Societies in Kenya and Uganda, as also the President of the There was formal acknowledgement of my presence Rwanda Bar Association and the CEO of the Tanganyika as President of the CLA at the beginning of both these Law Society. The rule of law is an issue of concern in these conferences. jurisdictions, inasmuch as the verdict of the Supreme Court of Kenya in regard to election to the post of President of What came out at the meeting with the Chief Justice of the country faced rough weather from the executive wing of Rwanda was an action-oriented programme that had been put the State. Earlier the CLA had issued a statement expressing in place for a campaign against corruption and an expression of its concern since such acts affects the independence of the happiness about the support for this from the Bar. Judiciary. I met the Chief Justice of Kenya during my visit and Lawyers in all the four jurisdictions of East Africa are expressed our support while reiterating the contents of our active not only in relation to the affairs of the legal profession statement. and independence of the judiciary, but they are also no less At a Nairobi hospital, the President of the Law Society of concerned with issues of rule of law. What I also got to see was Tanzania, Tinda Lissu (who is also a Member of Parliament), the proactive participation of a number of women lawyers. I was recovering from bullet injuries he received during an attack found lawyers espousing the regional aspirations of East Africa. on him when he reached home from Parliament one day. They also wanted the political class to play a proactive role. Along with the President of the Law Society of Kenya, I met There is, besides, a statutory flavour to the concept of the Mr Lissu at the hospital and expressed our anguish about the region called Africa, inasmuch as issues concerning human incident. Later on I spoke to the Press condemning such an act rights in the region are being dealt with by a Regional Court and about the squeezing of the democratic space in Tanzania. located at Arusha, Tanzania, where the headquarters of both East Africa Law Society & Pan African Lawyers Union are I visited Entebbe, Uganda, in middle of November to located. attend the Annual Conference of the East Africa Law Society. - R Santhanakrishnan “Future Proofing of the Legal Profession in East Africa” was the theme of the three-day conference. An interesting feature of the conference was to see young lawyers, women lawyers 4 © Commonwealth Lawyers’ Association and Contributors 2017 Editor’s Note The keener-eyed among readers will have noticed that this in particular on issues of compatibility with protected human journal is returning after a lengthy hiatus. This is because rights … and common law protections”. Whether this we had to, for pressing reasons, skip our last (April 2017) prediction will come to pass remains to be seen, but the article issue. I am sorry as well that the current issue is also making is a valuable contribution to a debate whose importance cannot a late appearance. It will be my endeavour to resume the be underestimated. journal’s normal production cycle soon. We appreciate the understanding and forbearance of our readers. By coincidence, this issue also features a brief but powerfully argued article which refers to a decision made by Mr Justice That said, there is much in this issue that I hope you will McCloskey, sitting as the senior judicial review judge, in the find interesting and instructive. We carry a thoughtful article High Court in Belfast. The decision concerned an application by the Chief Justice of Singapore, Sundaresh Menon, on the for recusal made under particularly contentious circumstances importance of mediation to the rule of law. Menon argues and which has generated strong views from diverse quarters. that access to justice (which mediation as a method of dispute Austen Morgan, a London-based practising barrister with close resolution promotes) is an aspect of the rule of law which links to Northern Ireland, looks at the circumstances under has not been given the attention it deserves. He believes that which a judge should recuse himself, and argues that decisions changing times call for a wider focus and he expresses the such as the one involving Mr Justice McCloskey should also hope that, “having regard to our evolving social, economic be looked at from a more important perspective, namely the and political circumstances, we might subject the conventional risk of politicisation of the judiciary which, in jurisdictions like theory of the Rule of Law, which places the adjudicative Ulster, is ever present. process in the centre of attention, to renewed scrutiny so that the centre-stage might also be shared by other non-adjudicative Moving away from domestic concerns, we carry an abridged processes.” His remarks are likely to have a deep resonance in version of a paper adopted recently by the International Bar many Commonwealth jurisdictions where access to justice for Association on the legality of armed drones as viewed through ordinary people remains a major challenge. an international law lens. This paper offers much food for thought on a subject which has polarised opinions in many We are also fortunate in getting a contribution on another countries and which will continue to be debated for a long topical issue, namely the implications of the United Kingdom’s time to come. proposed exit from the Europe (Brexit) on asylum law. This has become quite controversial, for reasons which are not Finally, as this issue was about to go to press, the Federal difficult to understand.
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