The experience and legacy of the British Empire is central to the shared history of the Commonwealth. With a few exceptions almost all member states were either colonies or protectorates of the British Empire at some point. Understanding this legacy is crucial as the Commonwealth continuously adapts. With a strong emphasis on the rule of law in the Commonwealth Charter, an understanding of the ‘Legal and Judicial Legacies of Empire’ is of crucial importance. This was the theme of a conference this week, hosted by the Institute of Commonwealth Studies, at Senate House in London.
For many Commonwealth citizens, the days of Empire and colonialism appear as something to be learned in history books, or from the voices of those who either served or fought against colonialism as the old European Empires died. However, from early on in the conference, the contemporary relevance of Empire in shaping the legal systems and laws governing many Commonwealth members and citizens emerged as a central theme. The Rt. Hon, Lord Judge opened the conference by discussing the impact of the Magna Carta on countries around the world. For Lord Judge, while the language of democracy, the rule of law and due process were missing from the text of the Magna Carta, it provided, the “source and inspiration of these principles which we take for granted” today. In the following sessions, speakers from Lesotho, the UK, Hong Kong, India and other former colonies testified to the influence of English Common Law, on constitutions, legal procedures and laws across the Commonwealth. Although discussions of the Magna Carta and imperial legal history appear, to the newcomer, as dry topics relevant to a bygone age, their legacy in the form of laws and legal systems across the Commonwealth are of central importance to the daily lives of all citizens.
If the morning sessions suggested the influence of English Law could be found across the world, key speakers indicated that the legal legacies of Empire were not uniform, but often areas of contestation and assimilation with other legal influences. Dr Mokhtar, a Sharia High Court Judge from Malaysia, gave a discussion on the interplay between the civil court system and the Sharia court system in Malaysia, noting how language, adversarial structures and rules on disclosure of documents from the civil courts had all influenced the Sharia courts. Meanwhile in the Caribbean, the judicial legacy of Empire is in contestation with new forms of regionalism. The Hon. Madame Justice Désirée Bernard, former Chancellor of the Judiciary in Guyana, spoke about the division in the Caribbean between those who use the Privy Council based in London as a final court of Appeal and those countries which turn to the Caribbean Court of Justice. These two speakers both showed ways in which the legal and judicial legacies of Empire exist alongside other legal elements and influences, in the contemporary Commonwealth of independent states.
The final two sessions of the conference went further, identifying areas where the legal legacies of Empire can and should be contested in the Commonwealth. Powerful presentations from Professor Paul McHugh (from Cambridge University) and Téa Braun (from the Human Dignity Trust) showed how legal hangovers of the Commonwealth’s colonial past still act as sources of oppression for citizens today. McHugh discussed how, at various points in the history of the Commonwealth, arbitrary decisions and discretionary power have been exercised over aboriginal and native populations, in countries such as Canada, Australia and New Zealand. Téa Braun’s presentation also highlighted the dark side of the legal legacies of Empire, as it focussed on the place of sex in colonial-era laws. Laws emanating from Britain, and still on the statute books of many Commonwealth countries, allowed for rape within marriage, the disregarding of male consent in sexual relations and the use of harsh punishments against any form of LGBTI relationship regardless of age and consent. Both presentations suggested that the legal and judicial legacies of Empire can and do manifest in ways which are an affront to human equality and dignity, and are a direct breach of the Commonwealth Charter.
Positive messages can certainly be taken from the conference, despite Braun and McHugh’s damninghighly critical presentations. The systems of law promulgated by the British were influential but not absolute. They are sites of contestation between competing views of the law and also provide a framework where old laws, which have little place in today’s Commonwealth, can be struck down. Braun, McHugh and others at the conference spoke of using legal challenges and the courts to protect minorities and strike down old laws which have no place in today’s Commonwealth. The legal and judicial legacies of Empire are mixed for the Commonwealth but represent a place, even today, where some of the demons of the past can be found, confronted and expelled.