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Commonwealth (Latimer House) Principleson the Three Branches of Government
COMMONWEALTH PRINCIPLES ON THE ACCOUNTABILITY OF AND THE RELATIONSHIP
THE THREE BRANCHES OF GOVERNMENT
As agreed by Law Ministers and endorsed by the
Commonwealth Heads of Government Meeting, Abuja,
At their meeting in St Vincent and the Grenadines in November 2002, Com-
monwealth Law Ministers gave detailed consideration to a
set of Guidelines on
good practice governing relations between the Executive, Parliament and the
Judiciary, in the promotion of good
governance, the rule of law and human
rights. These were drawn up by a conference sponsored by the Common- wealth
Association, the Commonwealth Legal Education Associ- ation, the
Commonwealth Magistrates’ and Judges’ Association and
monwealth Lawyers’ Association, which was held in the United Kingdom at
Latimer House, Buckinghamshire, in June 1998,
and revised by those associa-
tions after their initial consideration by Law Ministers in Port of Spain in
1999 and further work
by senior officials.
Ministers fully endorsed the importance of the issues addressed in the docu-
ment. They hoped that it would be possible for Commonwealth
Government to agree a statement of principles, which could assist reflection on
those issues. In response to the request
of Law Ministers, a small ministe-
rial working group was convened by the Commonwealth Secretary-General to develop
based on the Latimer House Guidelines.
Taking into account the views expressed by Commonwealth Law Ministers, the
working group of the Law Ministers of Australia, Ghana,
India, Jamaica, Kenya,
Singapore, South Africa and the United Kingdom finalized an agreed text of
Commonwealth Principles on the
Accountability of and Relationship between the
Three Branches of Government.
At the Commonwealth Heads of Government meeting in Abuja, Nigeria, in
December 2003, the Heads of Government fully
endorsed the recommenda- tions of their Law Ministers on the Latimer Guidelines,
specify the Com- monwealth Principles on the accountability of and
relationship between the three branches of Government.
It is acknowledged that these Commonwealth Principles buttress the declara-
tions of Commonwealth values found in the Harare Declaration
and the Mill- brook
I have stated earlier that the Commonwealth commitment to democratic prin-
ciples is more than rhetoric since it seeks to ensure that
all of a country's
democratic institutions reinforce one another. These institutions, whether leg-
islative, judicial or executive,
must always have the confidence of their people
in that they must be transparent in their deliberations and accountable for
decisions. Each institution has a distinct role to play as well as each
being a check or balancing mechanism for another.
What we now wish to see is the sharing of best practices and dissemination of
agreed values and principles. This will enable member
countries to move to that
optimum state of governance which is predicated on the rule of law in our
Commonwealth member states.
H.E. Rt Hon. Don McKinnon
As a result of the 2002 Meeting of Commonwealth Law Ministers held in St Vin-
cent and the Grenadines in November 2002 the Commonwealth
invited me to chair a small meeting of colleague Law Ministers from Australia,
Ghana, India, Jamaica, Kenya,
Singapore and the United Kingdom to review and
develop principles based on the Latimer House Guidelines. These principles were
reflect the accountability of and relationship between the three branches of
gov- ernment, namely: the Executive, Legislature and
It is indicative of the importance which my colleague Ministers attached to
this undertaking that we were able to come out with an
agreed text which it was
felt encapsulated the essence of these values. It is acknowledged that,
especially in the developing and
emerging democracies whose citizenry makes up
the bulk of the Commonwealth's 1.7 billion constituents, the co-efficient
of the relation- ship of the three arms of government is essential to
entrench the rule of law.
We were thus delighted that at their meeting in Abuja, Nigeria, in December
2003, the Commonwealth Heads of Government fully endorsed
the recommendations of
the Commonwealth Principles.The communiqué indeed acknowledged that
judicial independence and delivery
of efficient justice services were important
for main- taining the balance of power between the Executive, Legislature and
This has given a new impetus for member states to provide an
effective framework for the implementation of the Commonwealth's fundamental
values, whilst still taking into account national laws and customs.
It is my expectation that these Principles will be widely disseminated in all
Commonwealth member states.
Dr P.M. Maduna, MP
Minister for Justice and Constitutional Development, South
By the Commonwealth Lawyers’ Association, the Commonwealth Legal
Education Association, the Commonwealth Magistrates’
Judges’ Association and the Commonwealth Parliamentary
In their Communiqué of December 2003, Commonwealth Heads of
Government re-affirmed their commitment to the fundamental principles
Commonwealth and “endorsed the recommendations of their Law Ministers on
Commonwealth Principles on the accountability
of and relationship between the
three branches of Government. They acknowledged that judicial independence and
delivery of effi-
cient justice services were important for maintaining the
balance of power between the Executive, Legislature and Judiciary”.
endorsement confirms the value of co-operation between the Commonwealth
professional organisations, the Com- monwealth Secretariat
and Commonwealth Law
Ministers in the promotion of the fundamental political values of the
In June 1998 a group of distinguished Parliamentarians, judges, lawyers and
legal aca- demics joined together at Latimer House in
Kingdom, at a Colloquium on Parliamentary Sovereignty and Judicial Independence
within the Commonwealth.
The Colloquium was sponsored by, the Commonwealth
Lawyers’ Association, the Commonwealth Legal Education Association, the
Magistrates’ and Judges’ Association and the
Commonwealth Parliamentary Associ- ation with the support of the Commonwealth
Foundation, the Commonwealth Secretariat and the United Kingdom Foreign and
The gathering was inspired by the formal recognition by Commonwealth Law Min- isters in 1996 of the importance of the role played by judges and lawyers in “healthy democracy” and by a meeting in February 1997 of the Heads of Government of 18
Commonwealth African countries which sought to evaluate the state of democra-
cy in Africa.The object of the Colloquium was to draft
guidelines which would
pro- vide an operational manual of good practice with regard to the commitments
con- tained in the Harare
Declaration and Millbrook Plan of Action and which
would to be implemented in every Commonwealth country.
The product of the Colloquium, The Latimer House Guidelines on Parliamentary
Supremacy and Judicial Independence, were placed before
Ministers at their meeting in Port of Spain in May 1999.They asked Senior
Officials to study The Guidelines and
report to the next Law Ministers
Events in the Commonwealth following the
publication of The Guidelines con- firmed the need to analyse the core issues at
protecting judicial and par- liamentary independence, in scrutinising
the delicate relationship between the branches of government
and in recognising
the part to be played in civil society by non-governmental organisations in
achieving those ends.
The Guidelines were approved by the CLEA members at their 1998 Conference in
Ocho Rios and were supported at later CLEA meetings held
in Malaysia, South
Africa, Sri Lanka and the United Kingdom.
In September 1999, the principles underlying The Guidelines were debated by judges and lawyers at a session on judicial independence held at the Common- wealth Law Conference in Kuala Lumpur. In September 2000, a meeting of Com- monwealth Chief Justices commended them for consideration by Heads of Gov- ernment in a statement issued at the Triennial Conference of the Commonwealth Magistrates’ and Judges’ Association, held in Edinburgh. The statement was subse- quently endorsed by Chief Justices from 31 Commonwealth countries. In February
2001, the Pacific Island Chief Justices endorsed the Edinburgh statement and
expressed support for the efforts of the sponsoring
In November 2001, Senior Officials meeting in London “noted that the
principles of good governance and judicial independence
had been clearly
endorsed by Com- monwealth Heads of Government and welcomed the general thrust
of the decla- ration of those principles
in The Guidelines”. Subject to
refinement of the text in a number of respects including those in relation to
they agreed that the Guidelines would be laid before Law
Ministers at their next meeting.
At their Meeting in St Vincent and the Grenadines in November 2002, Law
Minis- ters gave detailed consideration to The Guidelines,
which had been
refined by a working group consisting of the sponsoring associations and the
Commonwealth Secretariat. Ministers fully
endorsed the importance of the issues
involved in the document and “hoped that it would be possible for
of Gov- ernment to agree a statement of principles which
could assist reflection on these issues”. They invited the Commonwealth
Secretary-General to convene a small group of Law Ministers to work with the
Commonwealth Secretariat in order to refine and develop
principles based on The
Guidelines for submission to Heads of Government.
The resulting text was approved by Law Ministers and placed on the agenda of the
2003 Heads of Government Meeting in Abuja. The Principles were endorsed in
paragraph 8 of the Abuja Communiqué . Thus Heads
of Government have
recog- nised the valuable work undertaken by the Commonwealth parliamentary,
legal and judicial associations to
further the commitments made in the Harare
and Millbrook Plan of Action in the promotion of good governance, fundamental
human rights, the rule of law and the independence of
In the view of our associations, the implementation of the Principles is
essential for the realisation of the legitimate aspirations
of all the peoples
of the Common- wealth.
Mr Colin Nicholls, QC President
Commonwealth Lawyers’ Association
Prof. David McQuoid-Mason
Commonwealth Legal Education Association
Rt Hon. Lord Hope of Craighead
Commonwealth Magistrates’ and Judges’ Association
Hon. Denis Marshall, QSO Secretary-General
COMMONWEALTH PRINCIPLES ON THE ACCOUNTABILITY OF AND THE RELATIONSHIP
THE THREE BRANCHES OF GOVERNMENT
Commonwealth Heads of Government warmly welcome the contribution made by the
Commonwealth Parliamentary Association and the legal
profession of the
Commonwealth represented by the Commonwealth Magistrates’ and
Judges’ Asso- ciation, the Commonwealth
Lawyers’ Association and the
Commonwealth Legal Education Association to further the Commonwealth Harare
They acknowledge the value of the work of these Associations to develop the
Latimer House Guidelines and resolve, in the spirit of
those Guidelines, to
adopt the Commonwealth Principles on the Accountability of and the
Relationship Between the Three Branches
The objective of these Principles is to provide, in accordance with the laws
and cus- toms of each Commonwealth country, an effective
framework for the
implementa- tion by governments, parliaments and judiciaries of the
Commonwealth’s funda- mental values.
I) The Three Branches of Government
Each Commonwealth country’s Parliaments, Executives and Judiciaries are
the guar- antors in their respective spheres of the
rule of law, the promotion
and protection of fundamental human rights and the entrenchment of good
governance based on the highest
standards of honesty, probity and
II) Parliament and the Judiciary
(a) Relations between parliament and the judiciary should be governed by
respect for parliament’s primary responsibility for
law making on the one
hand and for the judiciary’s responsibility for the interpretation and
application of the law on the
(b) Judiciaries and parliaments should fulfill their respective but critical
roles in the promotion of the rule of law in a complementary
III) Independence of
(a) Parliamentarians must be able to carry out their legislative and
constitutional functions in accordance with the Constitution,
free from unlawful
(b) Criminal and defamation laws should not be used to restrict legitimate
criticism of Parliament; the offence of contempt of parliament
narrowly drawn and reporting of the proceedings of parliament should not be
unduly restricted by nar- row application of
the defence of qualified
IV) Independence of the Judiciary
An independent, impartial, honest and competent judiciary is integral to
upholding the rule of law, engendering public confidence
and dispensing justice.
The function of the judiciary is to interpret and apply national constitutions
and legislation, con- sistent
with international human rights conventions and
international law, to the extent permitted by the domestic law of each
To secure these aims:
(a) Judicial appointments should be made on the basis of clearly defined
criteria and by a publicly declared process. The process
equality of opportunity for all who are eligible for judicial office;
appointment on merit; and
that appropriate consideration is given to the need for the progressive
attain- ment of gender equity and the removal of other historic
(b) Arrangements for appropriate security of tenure and protection of levels
of remuneration must be in place;
(c) Adequate resources should be provided for the judicial system to operate
effec- tively without any undue constraints which may
hamper the independence
(d) Interaction, if any, between the executive and the judiciary should not
compro- mise judicial independence.
Judges should be subject to suspension or removal only for reasons of
incapacity or misbehaviour that clearly renders them unfit to
Court proceedings should, unless the law or overriding public interest
otherwise dictates, be open to the public. Superior Court decisions
published and accessible to the public and be given in a timely manner.
An independent, effective and competent legal profession is fundamental to
the upholding of the rule of law and the independence of
V) Public Office Holders
(a) Merit and proven integrity, should be the criteria of eligibility for
appointment to public office;
(b) Subject to (a), measures may be taken, where possible and appropriate, to
ensure that the holders of all public offices generally
reflect the composition
of the community in terms of gender, ethnicity, social and religious groups and
VI) Ethical Governance
Ministers, Members of Parliament, judicial officers and public office holders
in each jurisdiction should respectively develop, adopt
and periodically review
appropriate guidelines for ethical conduct. These should address the issue of
conflict of inter- est, whether
actual or perceived, with a view to enhancing
transparency, accounta- bility and public confidence.
VII) Accountability Mechanisms
(a) Executive Accountability to Parliament
Parliaments and governments should maintain high standards of accountability,
transparency and responsibility in the conduct of all
Parliamentary procedures should provide adequate mechanisms to enforce the
accountability of the executive to Parliament.
(b) Judicial Accountability
Judges are accountable to the Constitution and to the law which they must
apply honestly, independently and with integrity. The principles
accountability and independence underpin public confidence in the judicial
system and the impor- tance of the judiciary
as one of the three pillars upon
which a responsible govern- ment relies.
In addition to providing proper procedures for the removal of judges on
grounds of incapacity or misbehaviour that are required to
support the principle
of inde- pendence of the judiciary, any disciplinary procedures should be fairly
and objec- tively administered.
Disciplinary proceedings which might lead to the
removal of a judicial officer should include appropriate safeguards to ensure
The criminal law and contempt proceedings should not be used to restrict
legiti- mate criticism of the performance of judicial functions.
(c) Judicial review
Best democratic principles require that the actions of governments are open
to scrutiny by the courts, to ensure that decisions taken
comply with the
Constitu- tion, with relevant statutes and other law, including the law relating
to the princi- ples of natural justice.
VIII) The law-making process
In order to enhance the effectiveness of law making as an essential element
of the good governance agenda:
There should be adequate parliamentary examination of proposed legislation;
Where appropriate, opportunity should be given for public
input into the
legisla- tive process;
Parliaments should, where relevant, be given the opportunity to consider
inter- national instruments or regional conventions agreed
IX) Oversight of Government
The promotion of zero-tolerance for corruption is vital to good governance. A
transparent and accountable government, together with
freedom of expression,
encourages the full participation of its citizens in the democratic
Steps which may be taken to encourage public sector accountability
(a) The establishment of scrutiny bodies and mechanisms to oversee
Government, enhances public confidence in the integrity and acceptability
government’s activ- ities. Independent bodies such as Public
Accounts Committees, Ombudsmen, Human Rights Commissions,
Anti-corruption commissions, Information Commissioners and similar oversight
institutions can play a key role
in enhancing public awareness of good
governance and rule of law issues. Govern-
ments are encouraged to establish or enhance appropriate oversight bodies in
accordance with national circumstances,
(b) Government’s transparency and accountability is promoted by an
independent and vibrant media which is responsible, objective
and impartial and
which is pro- tected by law in its freedom to report and comment upon public
X) Civil Society
Parliaments and governments should recognise the role that civil society
plays in the implementation of the Commonwealth’s fundamental
should strive for a constructive relationship with civil society to ensure that
there is broader opportunity for lawful
participation in the democratic
PARLIAMENTARY SUPREMACY JUDICIAL INDEPENDENCE...
LATIMER HOUSE GUIDELINES FOR THE COMMONWEALTH
19 JUNE 1998
Guidelines on good practice governing relations between the Executive,
Parliament and the Judiciary in the promotion of good governance,
the rule of
law and human rights to ensure the effective implementation of the Harare
RECALLING the renewed commitment at the 1997 Commonwealth Heads of Government
Meeting at Edinburgh to the Harare Principles and the
Action Programme and, in particular, the pledge in paragraph 9 of the Harare
Declaration to work for the protection
and promotion of the funda- mental
political values of the Commonwealth:
• Democratic processes and institutions which reflect national circum- stances, the rule of law and the independence of the judiciary;
• Just and honest government;
• Fundamental human rights, including equal rights and opportunities for all citizens regardless of race, colour, creed or political belief, and
• Equality for women, so that they may exercise their full and equal
rights. Representatives of the Commonwealth Parliamentary
Common- wealth Magistrates’ and Judges’ Association, the
Commonwealth Lawyers’ Associa- tion and
the Commonwealth Legal Education
Association meeting at Latimer House in the United Kingdom from 15 to 19 June
HAVE RESOLVED to adopt the following Principles and Guidelines and propose
them for consideration by the Commonwealth Heads of Government
Meeting and for
effective implementation by member countries of the Commonwealth.
The successful implementation of these Guidelines calls for a commitment,
made in the utmost good faith, of the relevant national
particular the executive, parlia- ment and the judiciary, to the essential
principles of good governance, fundamental
human rights and the rule of law,
including the independence of the judiciary, so that the legiti- mate
aspirations of all the peoples
of the Commonwealth should be met.
Each institution must exercise responsibility and restraint in the exercise
of power within its own constitutional sphere so as not
to encroach on the
legitimate dis- charge of constitutional functions by the other
It is recognised that the special circumstances of small and/or
under-resourced jurisdictions may require adaptation of these
It is recognised that redress of gender imbalance is essential to accomplish
full and equal rights in society and to achieve true
Merit and the capacity to perform public office regardless of disability should
be the criteria of eligibility for appointment
I) PARLIAMENT AND THE JUDICIARY
1. The legislative function is the primary responsibility of parliament as
the elect- ed body representing the people. Judges may2 be
constructive and purposive in the interpretation of legislation, but must not
usurp Parliament’s legislative function. Courts
should have the power to
declare legislation to be unconstitutional and of no legal effect. However,
there may be circumstances
where the appropriate rem- edy would be for the court
to declare the incompatibility of a statute with the Con- stitution, leaving
to the legislature to take remedial legislative measures.
2. Commonwealth parliaments should take speedy and effective steps to imple-
ment their countries’ international human rights
obligations by enacting
appropri- ate human rights legislation. Special legislation (such as equal
opportunity laws) is required
to extend the protection of fundamental rights to
the private sphere. Where domestic incorporation has not occurred, international
instruments should be applied to aid interpretation.
3. Judges should adopt a generous and purposive approach in interpreting a
Bill of Rights.This is particularly important in countries
which are in the
process of build- ing democratic traditions. Judges have a vital part to play in
developing and main- taining a
vibrant human rights environment throughout the
4. International law and, in particular, human rights jurisprudence can
greatly assist domestic courts in interpreting a Bill of Rights.
It also can
help expand the scope of a Bill of Rights making it more meaningful and
5. While dialogue between the judiciary and the government may be desirable
or appropriate, in no circumstances should such dialogue
6. People should have easy and unhindered access to courts, particularly to
enforce their fundamental rights. Any existing procedural
obstacles to access
to justice should be removed.
7. People should also be made aware of, and have access to, other important
fora for human rights dispute resolution, particularly
Commissions, Offices of the Ombudsman and mechanisms for alternative dispute
8. Everyone, especially judges, parliamentarians and lawyers, should have
access to human rights education.
II) PRESERVING JUDICIAL INDEPENDENCE
1. Judicial appointments
Jurisdictions should have an appropriate independent process in place for
judicial appointments. Where no independent system already
should be made by a judicial services commission (established by the
Constitution or by statute) or by an appropriate
officer of state acting on the
recommendation of such a commission3.
The appointment process, whether or not involving an appropriately
constituted and representative judicial services commission, should
to guarantee the quality and independence of mind of those selected for
appointment at all lev- els of the judiciary.
Judicial appointments to all levels of the judiciary should be made on merit
with appropriate provision for the progressive removal
of gender imbalance and
of other historic factors of discrimination.
Judicial appointments should normally be permanent; whilst in some
jurisdictions, contract appointments may be inevitable, such appointments
be subject to appropriate security of tenure4.
Judicial vacancies should be advertised.
Sufficient and sustainable funding should be provided to enable the judiciary
to per- form its functions to the highest standards.
Such funds, once voted for
the judici- ary by the legislature, should be protected from alienation or
misuse.The allocation or withholding
of funding should not be used as a means of
exercising improper control over the judiciary.5
Appropriate salaries and benefits, supporting staff, resources and equipment
are essential to the proper functioning of the judiciary.
As a matter of principle, judicial salaries and benefits should be set by an
inde- pendent body and their value should be maintained.
A culture of judicial education should be developed.
Training should be organised, systematic and ongoing and under the control of
an adequately funded judicial body.
Judicial training should include the teaching of the law, judicial skills and
the social context including ethnic and gender issues.
The curriculum should be controlled by judicial officers who should have the
assis- tance of lay specialists.
For jurisdictions without adequate training facilities, access to facilities
in other jurisdictions should be provided.
Courses in judicial education should be offered to practising lawyers as part
of their ongoing professional development training7.
III) PRESERVING THE INDEPENDENCE OF
1. Article 9 of the Bill of Rights 1688 is re-affirmed. This article
“That the Freedome of Speech and Debates or Proceedings in Parlyement
ought not to be impeached or questioned in any court or
place out of
2. Security of members during their parliamentary term is fundamental to
parlia- mentary independence and therefore:
(a) the expulsion of members from parliament as a penalty for leaving their par- ties (floor-crossing) should be viewed as a possible infringement of members’ independence; anti-defection measures may be necessary in some jurisdictions to deal with corrupt practices9;
(b) laws allowing for the recall of members during their elected term should be viewed with caution, as a potential threat to the independence of members;
(c) the cessation of membership of a political party of itself should not
lead to the loss of a member’s seat.
3. In the discharge of their functions, members should be free from improper
pres- sures and accordingly:
(a) the criminal law and the use of defamation proceedings are not appropriate mechanisms for restricting legitimate criticism of the government or the parlia- ment;
(b) the defence of qualified privilege with respect to reports of parliamentary proceedings should be drawn as broadly as possible to permit full public report- ing and discussion of public affairs;
(c) the offence of contempt of parliament should be drawn as narrowly as
IV ) WOMEN IN PARLIAMENT10
1. To improve the numbers of women members in Commonwealth parliaments, the
role of women within political parties should be enhanced,
appointment of more women to executive roles within political parties.
2. Pro-active searches for potential candidates should be undertaken by
3. Political parties in nations with proportional representation should be
required to ensure an adequate gender balance on their
respective lists of
candidates for election. Women, where relevant, should be included in the top
part of the candi- dates lists
of political parties. Parties should be called
upon publicly to declare the degree of representation of women on their lists
to defend any failure to main- tain adequate representation.
4. Where there is no proportional representation, candidate search and/or
selec- tion committees of political parties should be gender-balanced
represen- tation at political conventions and this should be facilitated by
political parties by way of amendment to party
constitutions; women should be
put forward for safe seats.
5. Women should be elected to parliament through regular electoral
processes. The provision of reservations for women in national
whilst useful, tends to be insufficient for securing adequate and long-term
representation by women.
6. Men should work in partnership with women to redress constraints on women
entering parliament. True gender balance requires the
oppositional element of
the inclusion of men in the process of dialogue and remedial action to address
the nec- essary inclusion
of both genders in all aspects of public life.
V) JUDICIAL AND PARLIAMENTARY ETHICS
1. Judicial Ethics
(a) A Code of Ethics and Conduct should be developed and adopted by each judiciary as a means of ensuring the accountability of judges;
(b) the Commonwealth Magistrates’ and Judges’ Association should be encour- aged to complete its Model Code of Judicial Conduct now in development11;
(c) the Association should also serve as a repository of codes of judicial
conduct developed by Commonwealth judiciaries, which will
serve as a resource
for other jurisdictions.
2. Parliamentary Ethics
(a) Conflict of interest guidelines and codes of conduct should require full dis- closure by ministers and members of their financial and business interests;
(b) members of parliament should have privileged access to advice from statu- torily-established Ethics Advisors;
(c) whilst responsive to the needs of society and recognising minority views
in society, members of parliament should avoid excessive
influence of lobbyists
and special interest groups.
VI) ACCOUNTABILITY MECHANISMS
1. Judicial Accountability
(i) In cases where a judge is at risk of removal, the judge must have the right to be fully informed of the charges, to be represented at a hearing, to make a full defence and to be judged by an independent and impartial tribunal. Grounds for removal of a judge should be limited to:
(A) inability to perform judicial duties and
(B) serious misconduct.
(ii) In all other matters, the process should be conducted by the chief judge
of the courts;
(iii) Disciplinary procedures should not include the public admonition of judges. Any admonitions should be delivered in private, by the chief judge.
(b) Public Criticism12:
(i) Legitimate public criticism of judicial performance is a means of ensuring accountability;
(ii) The criminal law and contempt proceedings are not appropriate mecha- nisms for restricting legitimate criticism of the courts.
2. Executive Accountability
(a) Accountability of the Executive to Parliament
Parliamentary procedures should provide adequate mechanisms to enforce the
accountability of the executive to parliament. These should
(i) a committee structure appropriate to the size of parliament, adequately resourced and with the power to summon witnesses, including ministers. Gov- ernments should be required to announce publicly, within a defined time peri- od, their responses to committee reports;
(ii) standing orders should provide appropriate opportunities for members to question ministers and full debate on legislative proposals;
(iii) the public accounts should be independently audited by the Auditor Gen- eral who is responsible to and must report directly to parliament;
(iv) the chair of the Public Accounts Committee should normally be an oppo- sition member;
(v) offices of the Ombudsman, Human Rights Commissions and Access to
Information Commissioners should report regularly to parliament.
(b) Judicial Review
Commonwealth governments should endorse and implement the principles of judi-
cial review enshrined in the Lusaka Statement on Government
VII) THE LAW-MAKING PROCESS
1. Women should be involved in the work of national law commissions in the
law- making process. Ongoing assessment of legislation
is essential so as to
create a more gender-balanced society. Gender-neutral language should be used in
the draft- ing and use of
2. Procedures for the preliminary examination of issues in proposed
legislation should be adopted and published so that:
(a) there is public exposure of issues, papers and consultation on major reforms including, where possible, a draft bill;
(b) standing orders provide a delay of some days between introduction and debate to enable public comment unless suspended by consent or a significant- ly high percentage vote of the chamber, and
(c) major legislation can be referred to a select committee allowing for
the detailed examination of such legislation and the taking
of evidence from
mem- bers of the public.
3. Model standing orders protecting members’ rights and privileges and
permitting the incorporation of variations, to take local
account, should be drafted and published.
4. Parliament should be serviced by a professional staff independent of the
regular public service.
5. Adequate resources to government and non-government backbenchers should
be provided to improve parliamentary input and should
(a) training of new members;
(b) secretarial, office, library and research facilities;
(c) drafting assistance including private members’ bills.
6. An all-party committee of members of parliament should review and
administer parliament’s budget which should not be subject
to amendment by
7. Appropriate legislation should incorporate international human rights
instru- ments to assist in interpretation and to ensure that
compliance with such instruments, on introduction of the legislation.
8. It is recommended that “sunset” legislation (for the expiry
of all subordinate legislation not renewed) should be
enacted subject to power
to extend the life of such legislation.
VIII) THE ROLE OF NON-JUDICIAL AND NON-PARLIAMENTARY
1. The Commonwealth Statement on Freedom of Expression13 provides
essential guarantees to which all Commonwealth countries should
2. The Executive must refrain from all measures directed at inhibiting the
freedom of the press, including indirect methods such as
the misuse of official
3. An independent, organised legal profession is an essential component in
the pro- tection of the rule of law.
4. Adequate legal aid schemes should be provided for poor and disadvantaged
liti- gants, including public interest advocates.
5. Legal professional organisations should assist in the provision, through
pro bono schemes, of access to justice for the impecunious.
6. The executive must refrain from obstructing the functioning of an
independent legal profession by such means as withholding licensing
7. Human Rights Commissions, Offices of the Ombudsman and Access to Infor-
mation Commissioners can play a key role in enhancing public
awareness of good
governance and rule of law issues, and adequate funding and resources should be
made available to enable them to
discharge these functions. Parliament should
accept responsibility in this regard.
Such institutions should be empowered to provide access to alternative
dispute- resolution mechanisms.
IX) MEASURES FOR IMPLEMENTATION AND MONITORING
These guidelines should be forwarded to the Commonwealth Secretariat for con-
sideration by Law Ministers and Heads of Government14.
If these Guidelines are adopted, an effective monitoring procedure, which
might include a Standing Committee, should be devised under
Commonwealth jurisdictions accept an obligation to report on their compliance
with these Guidelines.
Consideration of these reports should form a regular part of the Meetings of Law
Ministers and of Heads of Government.
1. The final paragraph does not refer expressly to other forms of discrimination, e.g. on ethnic or religious grounds. There are a number of approaches to the redress of existing imbalances, such as selection based on "merit with bias", i.e. where, for example, if two applicants are of equal merit, the bias should be to appoint a woman where there exists gender imbalance.
2. It has been suggested that judges "shall" have a duty to adopt a
constructive and purposive approach to the interpretation of legislation,
particularly in a human rights context, as indicated in paragraph 3.
3. The Guidelines clearly recognise that, in certain jurisdictions, appropriate mechanisms for judicial appointments not involving a judicial service commission are in place. However, such commissions exist in many jurisdictions, though their composition differs. There are arguments for and against a majority of senior judges and in favour of strong representation of other branches of the legal pro- fession, members of parliament and of civil society in general.
4. The making of non-permanent judicial appointments by the executive without security of tenure remains controversial in a number of jurisdictions.
5. The provision of adequate funding for the judiciary must be a very high priority in order to uphold the rule of law, to ensure that good governance and democracy are sustained and to provide for the effective and efficient administration of justice. However, it is acknowledged that a shortfall in antic- ipated national income might lead to budgetary constraints.
Finance ministries are urged to engage in appropriate consultations in order to set realistic and sustainable budgets which parliaments should approve to ensure adequate funds are available.
6. This is an area where the sponsoring associations can play a cost-effective role in co-operation with the Commonwealth Secretariat. Resources need to be provided in order to support the judici- ary in the promotion of the rule of law and good governance.
7. The drafters of the Guidelines did not wish by this provision to impinge on either the independ- ence of the judiciary or the independence of the legal profession. However, in many jurisdictions throughout the Commonwealth, magistrates and judges are given no formal training on commence- ment of their duties. It was felt that appointees to the bench would benefit from some training prior to appointment in order to make them more aware of the duties and obligations of judicial officers and aid their passage to the bench.
8. It has been observed that the Guidelines are silent about the elected composition of the popu- lar chamber. In a number of jurisdictions, nominated members may have a decisive influence on the outcome of a vote. If properly used, however, the power of nomination may be used to redress, for example, gender imbalance and to ensure representation of ethnic or religious minorities. The role of non-elected senates or upper chambers must also be considered in this context.
9. There remains controversy about the balance to be struck between anti-floor-crossing measures as a barrier against corruption and the potential threat to the independence of MPs.
10. The emphasis on gender balance is not intended to imply that there are not other issues of equity in representation which need to be considered. Parliament should reflect the composition of the community which it represents in terms of ethnicity, social and religious groups and regional bal- ance. Some countries have experimented with regulation of national political parties to ensure, for example, that their support is not confined to one regional or ethnic group, a notion which would be profoundly hostile to the political culture in other jurisdictions.
11. Following discussion of the Guidelines, it has been accepted by the Working Group that a "uni- form" Model Code of Judicial Conduct is inappropriate. Judicial Officers in each country should devel- op, adopt and periodically review codes of ethics and conduct appropriate to their jurisdiction. The CMJA will promote that process in its programmes and will serve as a repository for such codes when adopted.
12. In certain jurisdictions, the corruption of the judiciary is acknowledged as a real problem. The recommendations contained in the Guidelines are entirely consistent with the Framework for Com- monwealth Principles in Promoting Good Governance and Combating Corruption approved by CHOGM in Durban in 1999.There is some support for the creation of a Judicial Ombudsman who may receive complaints from the public regarding the conduct of judges.
13. Since the Guidelines were drafted, the draft Statement on Freedom of Expression has been sub- ject to further consideration and the reference should take account of the new developments. The Commonwealth Heads of Government, in the Coolum Declaration of 5 March 2002, included a commitment to freedom of expression: "We stand united in: our commitment to democracy, the rule of law, good governance, freedom of expression and the protection of human rights...."
14. Under active consideration is the creation of a monitoring procedure
outside official Common- wealth processes.This initially
may involve an "annual
report" on the implementation of the Guide- lines in all Commonwealth
jurisdictions, noting "good" and "bad"
Published by the Commonwealth Secretariat, the Commonwealth
Parliamentary Association, the Commonwealth Legal Education Association,
Commonwealth Magistrates’ and Judges’ Association and the
Commonwealth Lawyers’ Association.