Observations of a lone Kiwi

I felt a little self-conscious enrolling for a "Bar Leaders" conference, it having been some years since I could claim to have some semblance of a leadership role at the bar. That no one who is a current bar leader in New Zealand appeared to be going to the conference added somewhat to my discomfort and I made a mental note that I was to resist the temptation to masquerade as a bar leader. But the programme looked interesting and the organisers did not reject my registration nor my payment of the conference fee so I duly arrived at the gargantuan Amsterdam Schiphol Airport on 13 May 2008 primed to participate in a conference that, on reflection, was one of the best that I have ever attended.

The list of participants made impressive reading and every continent had a presence. The Australian contingent easily outnumbered its New Zealand cousin by a factor of 10, meaning there were 10 of them and one of me. England sent 14 and two gentlemen represented the Ethiopian Bar Association. Apart from Ethiopia, Africa was well represented by lawyers from Botswana, Namibia, Nigeria, South Africa, Tanzania and Zambia. Europeans included lawyers or law society employees from Lithuania, Russian Federation, The Slovak Republic as well as France, Italy and Denmark. There was strong representation from Asia in the form of delegates from Japan, South Korea, Malaysia, Singapore and Pakistan.

For me, the most compelling session of the conference was on the Rule of Law and the role of bar associations in promoting and defending it. A close second would be the session on religious and secular laws. Space constraints dictate that I focus this article on the two sessions highlighted.

The Chair of the Rule of Law session referred to the individual and collective obligation of lawyers to uphold the Rule of Law. He made special mention of the New Zealand position, where it is now enshrined in statute (s4 of the Lawyers and Conveyancers Act 2006) that every lawyer has a fundamental obligation to uphold the Rule of Law. He thought we were the only jurisdiction to statutorily provide such an obligation on individual lawyers. Your correspondent of course puffed up with pride and up shot her hand when comments were sought from the floor. I was not at all certain that we were the only jurisdiction to have such a statutory provision but since no one else in the audience volunteered anything similar, I thought I might as well talk up this particular manifestation of Kiwi ingenuity. I briefly outlined s4 of our LCA and offered to show the act (which was on my laptop) to anyone interested.

The Rule of Law session underscored the vital role lawyers and their bar associations play in publicising, speaking against and holding in check the excesses of governmental power.

The speakers at the session were Ambiga Sreenevasan, president of the Malaysian Bar, Olisa Agbakoba SAN, president of the Nigerian Bar Association, and Ross Ray QC, president of the Law Council of Australia.

Ambiga Sreenevasan outlined events of the last 20 years or so in Malaysia that have severely tested the independence of the judiciary and the profession. Among those was the judicial crisis of 1988, when first the Lord President was removed from his post, and later the five judges of the Supreme Court who granted him an interim injunction against the removal were themselves sacked or suspended. Just last year a scandal erupted when a videotape purporting to record a conversation between a senior member of the Malaysian profession and a former Chief Justice was made public. The video appeared to indicate "deals" were done on judicial appointments. It also became known that the same senior lawyer took a holiday (in New Zealand) with another former Chief Justice.

The Malaysian Bar demonstrated its fearlessness and commitment to the Rule of Law by publicly speaking out in support of strong judicial institutions, respect for and compliance with judicial decisions and an independent and impartial judiciary unfettered by political fear or favour.

Other important issues that have recently confronted the Malaysian Bar include freedom of assembly and Ambiga Sreenevasan reported that a recent "Walk for Justice" in Kuala Lumpur attracted around 2,000 lawyers, far more than they had hoped for.

Olisa Agbakoba observed that the membership strength of the Nigerian profession (just under 100,000) gave it the weight to act on important Rule of Law issues. However, the political history of Nigeria from independence to the present, with its military dictatorships, authoritarian civilian rule and short-lived attempts at democratic government present challenges that we, living in a benign political climate in New Zealand, cannot even begin to understand.

Among the actions taken by the Nigerian Bar was a nationwide courts boycott on 13 and 14 March 2006 to protest the total disregard shown by the government for Supreme Court rulings relating to the forthcoming elections. It was also a way of demonstrating the Nigerian Bar’s support for the important role of the courts in ensuring unconstitutional behaviour would not go unchecked. The boycott was a huge success with all courts deserted for two days, and the machinery of the law ground to a halt. This led to the government promising to abide by court rulings and energised and encouraged the judiciary to continue with its work.

The Nigerian Bar Association continues to advocate for important Rule of Law components, often in the face of oppression and hostility. This is a salutary reminder of the courage and perseverance of our colleagues overseas.

Ross Ray QC spoke of the need to educate members of the profession on the insidious effects of the erosion of the Rule of Law, which took place even in countries considered to be liberal Western democracies. He said law societies and bar associations were best placed to speak out and raise public awareness and it was the strength, knowledge and integrity of such organisations that gave them a credible voice on behalf of the communities in which they operated.

He also mentioned the Australian and New Zealand joint effort to establish a Pacific Secretariat which would strengthen the bar associations in the Pacific nations. This was an example of how "skills transfer" from developed to less-developed jurisdictions (which was the subject of one of the sessions the previous day) could play its part in bolstering support for the Rule of Law.

Ross Ray aptly summed up the entire session when he said that, to the ordinary citizen, the Rule of Law simply means that "the powerful do not always win". I would add that if, as lawyers with our training, skill and intellect, we do not ensure that "the powerful do not always win", then who will?

The Rule of Law session was followed by a session on the interaction (mutual respect or mutual suspicion?) between religious and secular laws.

A panel of Rabbi Raphael Evers, Rabbi of Rotterdam, Baroness Haleh Afshar, Professor of Politics and Women’s Studies, University of York and a cross-bench Peer in the House of Lords, Canon John Rees, Provincial Registrar of (and legal adviser to) the Archbishop of Canterbury and Father Gerry Tartaglia, parish priest (and Roman Canon lawyer) of St Margaret’s, Govan, Glasgow, led the discussion.

The speakers represented the Jewish, Muslim, Anglican and Roman Catholic faiths and each provided illuminating perspectives on their faith and how they saw it interacting with secular laws.

The Rabbi commented that European enlightenment was aimed at protecting the state from religion but Americans have tended to make laws that ensured religion was protected from the state. He thought, for that reason, American Muslims were less alienated, even after the events of 11 September, than their European counterparts.

Father Tartaglia gave an insight into canon law, the legal system of Roman Catholics. He noted that civil and religious law coincided in a number of areas, including the area of rights. He pointed out that the Catholic Church enjoys the privilege of a nation state in the form of the Holy See at Vatican City. It has thus been able to participate in international discussions and has been able to influence the laws of nations, some of which are profoundly secular. An example is a treaty that was entered into by the Catholic Church and the State of Portugal.

Baroness Afshar spoke about the image of Islam and the "Islamaphobia" now prevalent in Western societies. She said that Sharia law had been constructed as a bogeyman and there was considerable prejudice in people’s minds, which had to be overcome before Islam could be properly understood. Her contention was that this prejudice, rooted in mistrust and suspicion, was a major obstacle to mutual respect between Islam and Western communities and it encouraged division rather than cooperation.

An important point raised by Baroness Afshar, which did much to dispel (for me, at any rate) the general misunderstanding of the position of women in Islam, was that the religion did value and honour women. As the Baroness put it, there was no shortage of rights for women in the Koran. The problem has been and still is the bad laws passed in the name of Islam by governments, which predominantly, if not wholly, comprised men.

She concluded that it was perfectly possible for secular and religious law to co-exist – a little trust and understanding on both sides would go a long way.

The final speaker, John Rees, provided a perspective from the Church of England. In February this year, the Archbishop of Canterbury found himself much maligned for making a very thoughtful address at the Royal Courts of Justice which included remarks on the role of Sharia Law within the legal structure of the United Kingdom (for the full text, see www.archbishopofcanterbury.org/1575). Apparently, within a couple of hours of the speech becoming public, the BBC received 17,000 emails.

The furore over the Archbishop’s remarks, explained Canon Rees, reflected the intense unease felt about religious faith in many European countries. For its adherents, religion is not a mere "lifestyle choice" but a set of deeply-held beliefs to which they owe loyalty and accountability. Governments and secularists feel increasingly uncomfortable with displays of overt religiosity and in the United Kingdom there has been litigation over Muslim women wearing veils in classrooms and courts, Christian women wearing crosses at work, churches employing gay youth workers and so on.

Like the Baroness, he lamented the gulf of miscomprehension that separated believers and non-believers but believed that the Church of England, using its historic links with government, could explain, clarify, mediate and negotiate so that that gulf could eventually be bridged.

And as for the Archbishop’s speech? Well, he did not argue for a parallel jurisdiction for Muslims. He did not advocate the supplanting of general law by Sharia law.

All he did was argue against the undiscerning application on an increasingly diverse community of a jurisprudence based exclusively on secularist and Enlightenment assumptions about human goals and human good and raised the possibility of general laws accommodating the deeply-held convictions of people for whom faith is more than a "lifestyle choice". I found the session deeply absorbing and the comments relevant to New Zealand’s increasingly multiracial and multi-faith society.

The session on professional ethics deserves a mention. An observation was made that the image of the lawyer has changed over time from that of a statesman with high ideals to an engineer or problem-solver who was paid to get results. The risk is that we become a profession so dominated by economic considerations that the public service aspect is eroded. Issues such as how lawyers should be regulated, whether non-lawyer ownership of firms would affect core principles and so on were vigorously debated.

If all of this seemed like hard work for your correspondent, the social side of the conference more than made up for it — a cocktail function held in De Posthoornkerk, a medieval church turned reception centre, a sumptuous dinner hosted by the Australians who were good enough to invite their Kiwi cousin and very convivial conference lunches and dinner. Like a new kid in school, I made friends rapidly, so what more could a girl want? Why, a grand tour of the Peace Palace at The Hague and a day with Sir Kenneth Keith, New Zealand judge at the International Court of Justice, of course. But you will have to wait for the next issue of LawTalk to read about that.

*Pam Davidson is a former president of the Wellington District Law Society (2004-2006). She is an NZLS Board member (until the new constitution under the Lawyers and Conveyancers Act 2006 takes effect). The views expressed in the article are her own and she attended the conference in her private capacity and for her own edification and professional development.