COMMONWEALTH LAW MOOT COURT COMPETITION: LONDON
2005
ANTHONY BROWN
The Commonwealth Law Mooting Competition was held in London from 12th-14th
September 2005. An orientation was conducted in the afternoon of Sunday 11th
September for all the mooting students, representing the twelve Commonwealth
regions. The Convention Centre, where the orientation was held, was also the
main venue for the 30th anniversary of the Commonwealth Law Conference, a
biennial conference which incorporates the Commonwealth Law Mooting Competition.
At the orientation, each team had to file their briefs and pleadings. This
session served as the first opportunity to meet-up with other mooting students
and to get a feel of who were your competitors for the next two days of round
robin competition.
The moot competition itself was held at the Law
Society offices. The Law Society building was not only immaculately maintained
but the interior designs and the odour of old leather and ancient timber
provided a solemn atmosphere, with portraits of jurists of very early times. It
was a very noble setting.
The case that formed the basis for the
competition involved two appellants and Her Majesty the Queen. The facts
concerned two Canadian businessmen (the appellants) who were arrested in the
Kingdom of Thainam (a fictitious country in Asia) and charged with attempting to
smuggle 10kg of cocaine into that country. Thainam had huge oil reserves and
Canada had recently entered into a multi-billion dollar contract with the
government of Thainam for the supply of oil to Canada. Despite its reserves of
oil, Thainam was an underdeveloped country with very poor infrastructure
including primitive and over-crowded prisons and a criminal justice system which
was not only staffed by under-paid officials but also centrally controlled by
the royal family of the Kingdom. The appellants had been detained for three
months in the Bangong prison where bad living conditions and cruel treatment
made life for them unpleasant. The penalty for smuggling over 1kg of cocaine in
Thainam was death by decapitation.
Officials of the Canadian Embassy
had been allowed access to the appellants who were told that, having considered
the matter, the Canadian government would not intervene in their case. The
reason given by embassy staff was that it was not in the interests of the
Canadian people as a whole to upset the delicate relationship which existed
between Canada and the Kingdom of Thainam.
After two months in custody
the appellants were able to consult a Thainamese lawyer who advised them that
there was no prospect of them being granted bail or of their conditions of
detention being improved. Lawyers acting for the appellants in Canada then
launched an urgent application in the Supreme Court of Canada seeking an order
requiring the Government of Canada to provide the appellants with diplomatic
protection in the form of an official request to the government of Thainam that
the conditions of their detention would conform to international standards; that
they would be given a fair trial before an impartial court, and that should they
be sentenced to death such sentence would not be carried out. The Supreme Court
of Canada refused to order the Canadian Government to provide diplomatic
protection in this form. The appellants then appealed to the Commonwealth Moot
Court.
The nature of the case involved a great deal of international law.
An observation made in respect of the authorities was that a number of the
authorities were used for both the appellant’s case and similarly for the
respondent’s case. An example of this is the decision in United States
v Burns (2001) 1 SCR 283. For the appellants, the case suggested that the
failure of the Canadian Government to extend diplomatic protection to the
appellants was a breach of the Canadian Charter of Rights and Freedoms.
It was argued that any failure by the Canadian Government to act, in
circumstances where it maybe able to grant protection to its nationals, was a
breach of the Charter by way of omission
Similarly, for the
respondent, the same case was used to support the view that any Canadian
national who left Canada of his or her own volition left behind them all the
rights and privileges conferred by the laws of Canada and that such person was
obliged to accept the criminal laws, procedures and punishments applicable in
the territory of whichever foreign State he or she entered.
Apart from
these two arguments the question arose as to whether the Commonwealth Moot Court
(which has the same status as the Privy Council) upset a Ministerial decision to
the effect that it was in the interests of the people of Canada not to provide
the appellants with diplomatic protection?
International agreements and
treaties were another source of reference. The International Covenant on
Civil and Political Rights details basic civil and political rights and
obligations of individuals and nations. Among the obligations on nations is the
solemn undertaking to ensure that the rights recognized within the
Covenant are given effect to all individuals within its territory without
distinction. The Universal Declaration of Human Rights was the first
international statement to use the term ‘human rights’. The
Charter universally declares that “everyone has the right to life,
liberty and security of person”. Both instruments have been ratified by
Canada and it was argued that this imposed an international obligation upon the
Government of Canada to act in the interests of the appellants as Canadian
citizens and to intervene if their human rights were or were likely to be
abused.
Finally, under the customary international law doctrine of State
responsibility, it was argued that Canada was obliged to protect its citizens
whose lives, human rights and fundamental freedoms were in jeopardy in a foreign
State.
Ultimately the determination of the Moot problem was not based
purely on the law but also on the manner and delivery of the argument, the
organisation, clarity, analysis, thoroughness of content; poise, composure, and
how each competitor answered the questions of the judges.
The first day
of the competition resulted in three wins for the appellant teams and three wins
for respondent teams. In this first round the team from the University of the
South Pacific won a narrow victory over the team from New Zealand. On the second
day of competition the University of the South Pacific team was narrowly
defeated by the team from Malaysia. The finals were held on the third day with
the grand final being between Canada and the United Kingdom. This final was won
by Canada. Their counsel spoke very eloquently. They were deserving
winners.
The scenario of the moot problem is not so far removed from the
Pacific. We need only recall the recent Australian cases of Corby and the Bali
nine in Indonesia and now the case of an Australian convicted in Singapore for
smuggling drugs. Both Indonesia and Singapore employ the death penalty as the
maximum penalty for such offences. The response by the Australian Government to
these incidents, apart from providing some legal aid, has been largely confined
to ensuring the welfare of their citizens.
How might other South Pacific
nations respond in similar circumstances? Fiji has also ratified the
International Convention on Civil and Political Rights. No doubt this
would be the starting point to argue protection for the rights of its citizens,
such as the right to legal resources, the right to life, the right to equality
before the law and the right to the presumption of innocence until proven
guilty. Fiji of course also has a Human Rights Committee which could assist in
diplomatic representations. However perhaps the most constructive option is to
learn from the experience of Canada who formalized a treaty with the United
States to the effect that if a Canadian national was found guilty of an offence
which attracted the death penalty by a court in the United States, then that
sentence would not be imposed, or if imposed, would not be carried out. That
being said, the difficulty for Fiji would be in terms of its own death
sentencing provisions under the Fiji Penal Code Cap 17, although this is
restricted to the offence of treason. The Tongan situation may be even more
precarious than Fiji because in Tonga the death penalty applies to the offences
of treason as well as murder.
The Commonwealth Moot experience is a
lifetime experience for a law student. No matter what the moot problem may be
for the competition, those who represent their University’s are not only
winners in their own right but they also gain the experience of engaging in high
level advocacy. To “go through the mill” of the competition is not
only a learning curve but also has exponential benefits in terms of meeting and
learning from some of the best mooting students in the Commonwealth. One also
gets to meet real judges, some of whom sat on the cases you learn about in your
studies. What was also rewarding was the level of respect competitors had each
other and the friendships that were made. The organisers and sponsors of this
event must be commended and thanked for giving law students throughout the
Commonwealth such a worthwhile learning experience.