The Role of the Commonwealth and Commonwealth Associations in Strengthening Administrative Law and Justice

• Jurisdiction: South Africa
• Date: 15 August 2019
• Author: John Hatchard
• Published date: 15 August 2019
• Pages: 405-422
• Citation: 2006 Acta Juridica 405

The Role of the Commonwealth and

Commonwealth Associations in

Strengthening Administrative Law and

Justice

JOHN HATCHARD* and GARY SLAPPER**

The Open University, UK

This paper focuses on the role of the Commonwealth and Common-

wealth associations, and in particular the Commonwealth Legal Educa-

tion Association, in strengthening administrative law and justice. It is

divided into two parts. Part 1 explores the work being done within the

Commonwealth that is designed to support and enhance administrative

law and justice. In doing so, it examines recent Commonwealth

initiatives, including the Latimer House Guidelines and the Common-

wealth Principles. Part 2 then argues that law teachers have a key role to

play in supporting these initiatives and examines mechanisms for

supporting and strengthening the teaching of, and research on, adminis-

trative law and justice in Commonwealth law schools.

I THE COMMONWEALTH, THE COMMONWEALTH LEGAL

EDUCATIONASSOCIATION AND ADMINISTRATIVE LAW

AND JUSTICE

The Commonwealth is the largest association of independent states after

the United Nations. Its 53 independent member countries, with a total

population estimated at some two billion, span all major political

groupings, regions and economic zones and comprise some of the largest

(eg. India) and smallest (eg. Nauru) countries in the world, as well as

some of poorest and some of the richest. It embraces major parts of Africa

and Asia, almost all of the Caribbean and much of the Pacif‌ic and

Australasia, as well as having members in Europe and America. It also

contains a high proportion of small states, whose interests the Common-

wealth is particularly anxious to strengthen and protect. It embraces a

variety of different political systems, but all member states acknowledge

the British Queen as Head of the Commonwealth.

1

* Professor of Law at The Open University and Secretary General of the Commonwealth

Legal Education Association.

** Professor of Law and Director of the Centre for Law, The Open University,UK.

1

The 1971 Declaration of Commonwealth Principles puts it as follows: ‘The Common-

wealth of Nations is a voluntary association of independent sovereign States....Members of

405

2006 Acta Juridica 405

© Juta and Company (Pty) Ltd

As the 1991 Harare Commonwealth Declaration puts it:

The special strength of the Commonwealth lies in the combination of the

diversity of its members with their shared inheritance in language, culture and

the rule of law. The Commonwealth way is to seek consensus through

consultation and the sharing of experience. It is uniquely placed to serve as a

model and as a catalyst for new forms of friendship and co-operation to all in

the spirit of the Charter of the United Nations.

In the constitutional and legal f‌ield, Commonwealth countries have

much in common:

(1) A common language: Whilst the people of the Commonwealth speak

many languages, they communicate with each other through the

shared language of English. As a result, their written laws and

decisions of their superior courts are almost invariably available in

English.

(2) A common legal heritage: The laws and legal system of the vast

majority of Commonwealth states are based on the English

common-law tradition. Countries with other legal traditions also

often make extensive use of common-law principles in areas such as

administrative law and criminal justice.

(3) Common constitutional principles: The Westminster model constitu-

tion was used as the basis for the independence constitutions of

many Commonwealth member states. This commonality has

encouraged courts to share jurisprudence on constitutional matters

and to develop common principles of constitutional interpretation.

(4) Common legal challenges: There is an enormous amount of co-

operation between Commonwealth countries on a range of legal

issues, for example, through the development and use of the various

Commonwealth schemes on international co-operation in criminal

matters.

2

The result is that for Commonwealth law teachers, there is a wealth of

comparative Commonwealth jurisprudence that is of enormous value for

teaching and research purposes. Here the challenge often is to f‌ind ways

of ensuring that this material is readily available to all law schools. This is

discussed below.

As well as what one might call the ‘Off‌icial Commonwealth’, there are

a number of Commonwealth associations. In the f‌ield of legal and

the Commonwealth come from territories in the six continents and f‌ive oceans, include people

of different races, languages and religions, and display every stage of economic development,

from poor developing nations to wealthy industrialised nations.’

2

In particular, the Harare Scheme on Mutual LegalAssistance in Criminal Matters and the

London Scheme on Extradition of Fugitive Offenders.

406 COMPARING ADMINISTRATIVE JUSTICE ACROSS THE COMMONWEALTH

© Juta and Company (Pty) Ltd