Commonwealth Law Ministers Research Articles

THE CRIME OF DEFAMATION – STILL DEFENSIBLE IN A MODERN CONSTITUTIONAL DEMOCRACY?

The crime of defamation, known as criminal libel in some jurisdictions, has (along with associated “insult laws”) been identified in the 2007 Declaration of Table Mountain of the World Association of Newspapers and News Publishers as the “greatest scourge of press freedom on the continent”. The Declaration proceeds to call for the abolition of such laws as a matter of urgency. This call has similarly been made in the Caribbean context by the International Press Institute and in the Commonwealth by the Commonwealth Human Rights Initiative (CHRI). Writing on behalf of CHRI, Cowell notes the “chilling effect” of defamation laws (along with the procedural laws and regulations governing libel actions), defining this phenomenon as “partially … self-censorship on the part of individuals but in general…a wider culture of fear and uncertainty within society that limits free speech”. On this basis, Cowell argues (for CHRI) that criminal defamation represents the “clearest threat to the exercise of freedom of speech withCommonwealth states” and that the “threat of criminal sanction can act as asignificant and widespread deterrent against all freedom of speech”, and that they should therefore be repealed. Similar calls forthe abolition of criminal defamation laws have issued from the Organization of American States and the Organization for Security and Co-operation in Europe, and in response to a complaint relating to a criminal libel conviction emanating from the Philippines, the United Nations Human Rights Council stated that “States parties should consider the decriminalization of defamation … application of the criminal law [in the context of defamation] should only be countenanced in the most serious of cases and imprisonment is never an appropriate remedy”.Despite these calls for the abolition of the crime, it is noteworthy that the crime is retained in many jurisdictions, including European jurisdictions and Commonwealth countries. For example, every Commonwealth state in the English-speaking Caribbean (except Grenada) has specific criminal libel laws, Asian Commonwealth countries such as India, Singapore and Malaysia have corresponding criminaldefamation provisions, and so do African Commonwealth countries such as Botswana and South Africa. In addition, Commonwealth members such as Australia and Canada retain criminal defamation laws. An approach from the Commonwealth Press Union arguing for the abolition of the crime of defamation on the basis that such a crime threatens freedom of expression and is subject to abuse, being used in cases which do not involve the public interest, did not find favour with the Commonwealth Law ministers in their meeting in Accra in 2005.

International civil legal co-operation

1This article proposes that Commonwealth countries should work together to achieve a greater level of co-operation in resolving international civil disputes. The purpose is to facilitate international trade and development, to improve access to justice, and to simplify, expedite and reduce the costs of international litigation. Existing arrangements between Commonwealth countries are limited, complex, outdated and inefficient. This article proposes the development of a Commonwealth Scheme for Co-operation in International Civil Matters, a proposal which was accepted by Commonwealth law ministers at their meeting in Sydney, Australia in July 2011. 1This article is based on a paper presented at the Meeting of Commonwealth Law Ministers and Senior Officials in Sydney, Australia, 11–14 July 2011, at which the recommendation proposed in this article, that ministers request the Commonwealth Secretariat to develop a scheme for co-operation in civil matters, was adopted; Meeting of Commonwealth Law Ministers and Senior Officials ‘Final Communiqué’ (Sydney, Australia 11–14 July 2011) paras 14–16 <http://www.thecommonwealth.org/files/238332/FileName/2011CLMMFinalCommunique.pdf> accessed 5 August 2011.

Meeting of Commonwealth Law Ministers, Edinburgh, 7–10 July 2008: Communiqué

Meeting of Commonwealth Law Ministers, Edinburgh, 7–10 July 2008: Communiqué

Meeting of Commonwealth Law Ministers and Senior Officials

Meeting of Commonwealth Law Ministers and Senior Officials

The Price of Probity

When the time comes to look back at the last two decades of the 20th century, a future historian would be forgiven for thinking we were almost obsessed with organised crime, corruption and money laundering. Of course, when one considers the ignominious fall from favour of so many world leaders, in circumstances where serious corruption was at least alleged, if not self‐evident, the exposure of rampant financial malpractice in intergovernmental organisations, the penetration of entire economic and political structures by, for what of a better notion, we describe as organised crime, then perhaps our historian's impression might not be too far from the truth. Although it is possible to find the odd comment in international meetings, about the serious implications of economic crime and the like, before the 1980s, these a few and far between. Most are related to complaints from developing countries about the unwillingness of developed countries to assist in the enforcement of exchange control laws. In fact, it was not until November 1980 that the Commonwealth, an organisation or rather association of states whose justification has increasingly been based on its ability to recognise and address problems related to small and relatively fragile economies, began to concern itself, at governmental level, with the implications of what appeared to be a growth in serious economic abuse. At the Commonwealth Law Ministers' Meeting in Barbados in that year, the ministers accepted the recommendations of a report, commissioned a year earlier by the then Director of the Commonwealth Secretariat's Legal Division, Mr Kutlu Fuad, and written by the present author, which led to the instigation of a Commonwealth programme against serious economic crime. It is interesting to note that certain Commonwealth governments had expressed concern during the 1970s not so much about abusive conduct on the part of conventional criminals, but on the part of those seeking to ‘bust’ the economic sanctions that had been imposed on Rhodesia and later South Africa. Indeed, it was claimed by some that, for example, South Africa was deliberately attempting to destabilise the economies of the ‘front‐line states’ through a programme of economic sabotage and crime. In those days, there was little talk, even in such organisations as ICPO‐Interpol, about the threat of organised crime. Terrorism, whether by individuals or by state agencies, was then considered to be a matter almost beyond the remit of traditional law enforcement agencies. It was much later that most came to recognise that organised crime and terrorist organisations may well be one and the same.

Communiqué of 1980 meeting of commonwealth law ministers

Communiqué of 1980 meeting of commonwealth law ministers