Justice Norma Wade Miller Opens Conference

Justice Norma Wade Miller who is President of the Commonwealth Magistrates’ and Judges’ Association, opened the annual four-day conference in September 2010 in the UK. The event attracted more than 180 chief justices, judges and magistrates from 35 jurisdictions in the Commonwealth.

Some of the issues raised included the necessity of judicial independence from Legislature and Executive government; the role of judicial officers in promoting human rights and protecting the liberty of the individual; issues relating to human rights in the ICC, military courts and war crimes tribunals; the particular challenges of dealing with gender, race, disability and other equality issues in the judiciary and before the courts; the role of the appellate court; the promotion and protection of the rights of the child and the role of the judiciary in dealing with violence in the family and forced marriages; and the issue of piracy on the high seas.

Justice Norma Wade Miller, 3rd from left with (l-r) Prof, Julian Crampton, Vice Chancellor – University of Brighton; Mr. Paul Norton, JP, Hon. Treasurer, CJMA; Justice Sanji Monageng, International Criminal Court; Lord Hope of Craighead PC, second Senior Lord of Appeal and former President of the Association and His. Hon. Chief Justice, Mahapela Lehohla of Lesotho at the 40th Annual Commonwealth Magistrates’ and Judges’ Association Conference in Brighton, UK.

Justice Norma M. Wade-Miller’s full speech is below:

Thank you very much Vice Chancellor for your very kind words of welcome.

Fellow Judicial Officers, ladies and gentlemen

Welcome to the University of Brighton, the setting for the 40th anniversary conference of the CMJA.

I bring you Greetings from Chief Justice Banda, my predecessor. Some of you may recall that he had taken ill on his way to our triennial conference held in Turks and Caicos Islands in September, 2009. Happily I can report that he is recovering.

We meet, for many of us, in the climatically interesting uncertainty of a UK Autumn (but with a very welcome break from hurricanes, we hope!) to discuss in detail some of the most important themes affecting the judiciary at all levels in all the countries represented here this morning. At this conference we shall be looking with concern and care at two of the most fundamental components in any democracy, Judicial Independence and Human Rights.

Our Director of Programmes and his planning committee have assembled an impressive roster of speakers and timely topics under the theme of “Commonwealth Justice and Judicial Independence: Local Issues, Commonwealth Standards”. This is a title rich in potential for exploration, touching on themes which lie at the heart of what we do every day. In the 40 years that CMJA has been in existence, it has always been so.

Our programme is wide ranging but thematically coherent. We begin by getting to the heart of things with a keynote speech on Judicial Independence to be delivered by Lord Judge, the Lord Chief Justice of England and Wales. We shall be able to explore the topic in the two following sessions, in the first looking practically at how we handle judicial appointments in our jurisdictions, and how our practices stand up to the test of independence. This will lead to a very interesting and pertinent jurisprudential theme which asks just what kind of office is held by the judiciary. Is it a body within the civil service as some governments believe, or is it an independent office within a national structure?

I am grateful to the Director of Programmes for bringing discussion on these themes to a conclusion by focusing in the last session on a category which many will consider to be more fundamental still, namely human rights. In the first of a number of interesting combinations of themes, the last topic today examines human rights in relation to the magistracy and other courts of first instance, asking the question how are human rights protected there, in the first point of contact with the judicial legal system.

In what might be a fascinating second day, we shall look at the individual and his or her liberty under the law, but then we move into the field of international law with discussions on the place of independence and liberty in military settings such as war crime tribunals, and to the problems which arise in bringing legal control to lawless situations such as that so vividly exemplified by acts of piracy in Somalia.

Judicial independence is closely related to a number of topics, one of which is that of equal opportunity. CMJA has always taken a close interest in matters of discrimination whether by gender, race or disability and the closing session on day 2 will focus on these issues. So each day ends with consideration of an aspect of human rights.

Day 3, a short day, turns to the Courts of Appeal. Within the entire judicial system there can be no place more defining of both the values of judicial independence and human rights than these courts. We shall spend the morning debating the important issues that arise from their activities in different countries.

After an afternoon excursion to the new Supreme Court in the capital, we move to the final day where the themes are once again large and diverse. Providenciales has provided us with an opportunity to consider how our topics at this conference, of community justice and judicial independence, can be taken forward to the next generation. How do we hand on the baton safely and ensure that the values that we have created in our different jurisdictions are safeguarded and made even more effective in the decades ahead?

We conclude by bringing the notion of community justice to the fore by discussing some of the most pertinent issues which face modern communities in so many countries. Violence in relationships is probably one of the key indicators of the health of a society. Add to that the disturbing phenomenon of forced relationships, such as in marriage, and we find ourselves in an area where human rights are held in low regard, and where judicial independence may be the only protection available to vulnerable people. We shall be looking at experiences in the Caribbean, Africa and here in the UK.

This is an important and hopefully stimulating conference. CMJA as we all know is a small organisation, but from the beginning it has always punched above its weight by focusing on major themes concerning law and society.

The Commonwealth Judicial Journal (CJJ) our association’s main publication, can lay claim to being a highly authoritative contemporary archive. Its articles show that we have never shied away from addressing the major issues of the day. In an interesting article written to celebrate 30 years of publishing in 2003, Nicola Padfield, CJJ’s fourth editor, gives a useful summary of the range and quality of the journal’s output.

She writes that between 1973 and 1976, when Eric Crowther was Editor, articles covered diverse subjects, ’juvenile crime; bail; the use of both capital and corporal punishment; the admission of confessions in evidence;…. criminal law in Northern Nigeria; tackling delay in court proceedings and family law in Ghana’. Padfield suggests that many articles and themes in the CJJ merit re-reading. She notes how the journal dealt in detail with human rights issues, for example, a cause celebre of a case in ‘the worst days of apartheid South Africa’ (the issue being the conviction of a Dr Naude for refusing to testify under oath before a tribunal that was meeting in secret), and quoting on the subject from the late Lord Scarman: ‘human rights are those which governments must respect and protect if they are to remain lawful governments….the ultimate legal problem of our generation is to reconcile our civil and political rights with our social and economic rights’ so that freedom and justice are not sacrificed as a result of a failure to do so.

Our organisation was created to do something important for the people of the Commonwealth. Today, some of us will take for granted the independence of our office, but it is worth noting that in our 40 years and in some of our countries, it continues to be something we cannot always rely upon and we must never be complacent and remain vigilant in order to preserve our independence.

In our conference title we are focusing on a number of fundamental relationships and we are invited to address them in the context of law and the role of the judiciary. Let us quickly look at these both historically and contemporaneously.

We are, first, talking about Community and Justice. This will need thinking about – what is a Community? Is it our country, our family, our local area, our political party, our church group, our school? In reality it is all of these things, all of the time, and our application of judicial standards has to be relevant to all of these, and more. Many of us may think about this topic in relation to sentencing options. We might see it as having to do with communities having some input into criminal justice with schemes such as community payback, restorative schemes, and non-custodial alternatives to custody and so on. What can we learn from each other here this week?

We are also highlighting the link between law and community life. I suggest that law is the bedrock on which communities are built. Communities need other things than law, of course, but without it they will weaken and ultimately they may collapse. Such vulnerabilities will not always be evident as societies change slowly. I am more concerned about this silent process which I would like to describe as social decay.

Laws take time to be enacted, time to embed and time to adapt. The same applies to communities. They can be destroyed, occasionally dramatically but often through breakdown over time. In my own jurisdiction, one of the wealthy, economically well regulated countries in the world and one where stability and community values are highly prized, the stealth by which collapse extends itself is now, I think, visible. We might notice things with concern, but we adapt and carry on not fully recognising that things are getting worse. In Bermuda, and I am sure in other countries too community tension, violence, disaffected groups, family feuds and so on are becoming more prevalent. In Bermuda in 2010 there have been 7 gang related murders already by this third quarter, and in the year from May 2009 to the present the total is a sombre 15 people dead, with 42 victims of shooting incidents. The total number of murders in 2009 was 6, giving a murder rate of 9.2 per 100,000 people. In 2004, the rate had been assessed at just 1.1 per 100,000.

In countries where judicial independence is established, the criminal justice system will have early indication of this in many cases, and the way we understand and respond to the cases brought before us will be an important part of the response of our community.

The second part of our title is ‘Judicial independence’, a recurrent theme in our 40 year history. In 1990 Nicola Padfield, asked Professor Tony Allott to write an editorial on ‘An Independent Judiciary’ and he reports that he asked members of the CMJA to answer a number of questions for him:

‘How stands judicial independence in commonwealth countries today;

How can invasions of the independence of the judiciary in member countries be brought to public notice;

What can be done to reduce or eliminate threats to judicial independence in member countries?’

In a telling comment, Padfield reports that ‘the paucity of responses was a great disappointment to Professor Allott’.

In that one aside I would like to suggest to you this morning that it is time for our membership on our 40th anniversary to respond unequivocally, if a little belatedly, to the spirit of that invitation. Judicial independence is a major component in any democracy. Without it, communities suffer and the quality of justice is compromised, and in some cases even judges’ fall short of the standards expected of them. There have been disturbing reports of judicial malfunction in a number of jurisdictions, such as Gibraltar, Tonga, the Cayman Islands and the Maldives. Indeed, the UK has not been exempt.

CMJA stands for protecting the standards of justice in communities around the world, and for upholding the highest standards of judicial practice in the lower and higher courts. This is not a passive process; it is dynamic and requires effort. If we fail in this duty both individuals and whole communities will suffer, and if they suffer, so will democracy. In our 40 years we have seen the departure of some oppressive political regimes, but we have also seen the strengthening of other undemocratic regimes. Sadly, we now see the emergence of new trends such as an increase in violence in normally peaceful societies. In failing to respond to Tony Allott, or to engage with the work of CMJA we are doing more than making a personal choice to be more or less active in the organisation. We may be failing in our duty as custodians of the values of judicial independence and all that it means. We may also be putting at risk the enviable reputation that we have built up, namely that as a small organisation we deal well with big issues. It is our responsibility to work and honour our predecessors by improving standards across the Commonwealth. This can only be done with the support of you as judicial officers practising in the Commonwealth. Without adequate funds we are unable to effect the necessary changes and improve the administration of justice efficiently in the 21st century across the Commonwealth. We need to be able to continue to do that, indeed to do it better. Our central charge as an organization is our responsibility to work and honour our predecessors’ vision for the organisation.

These are challenging times but I have no doubt as a body we can respond successfully to all of the challenges we are facing and will continue to face. One of these challenges is of course how we finance ourselves. It may well be that we should each consider what Sir Henry Brooke has previously proposed, namely that each judge should become an individual member of CMJA. This is over and above being a member by virtue of your country’s membership of the Association.

If each one of you were to join as an individual member that would significantly improve our financial position, and would help to alleviate the financial strain that the Association is currently experiencing. So can I encourage you to join as an individual member this week if you aren’t already a member? Karen and Kate will be delighted to take your subscription at the CMJA stand next to the Registration Desk at any point this week and why not buy some of our valuable educational reports at the same time!

In this conference, whilst we deal with these major themes, I would ask you to think about how in 2010 we can punch even more above our weight.

I would like to thank the staff of the University of Brighton (Business school and law faculty) for their warm welcome, assistance and generous hospitality. I particularly extend special thanks to Karen Brewer and Kate Hubbard who are at head office and have done all the tedious work of ensuring that the records are kept straight; and to Paul Norton our Treasurer who makes sure that we remain afloat.

I would like to extend a welcome too, to those of you who are accompanying delegates to the conference.

And finally, to all of you who have given your valuable time and effort to supporting this Conference, and who have in many cases travelled long distances to be here, I offer my thanks.

It is now, with great pleasure that I declare the conference open.

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