The Commonwealth Lawyers Association (CLA) held their 24th annual Commonwealth Law Conference in Malta from 6 to 10 April 2025. Vice-President of the Law Society of South Africa (LSSA), Joanne Anthony-Gooden attended the conference and compiled the following report.
Family law symposium
On Saturday, 5 April, a family law symposium was held and co-hosted by the CLA Family Law Committee and the International Academy of Family Lawyers (IAFL) and the Family Law Bar Association (FLBA). The family law symposium’s topic was ‘“Show me the money” – family law, trusts, recognition and enforcement’.
During the first panel discussion, ‘Jurisdiction in family law matters where there are financial elements abroad’ the following statement was made: The jurisdiction of the courts in State A deal with family law matters, where there are connections with State B, whether it relates to people, property and/or structures in State B.
This interactive session consisted of questions and answers posed by the panel and the audience.
Deputy Prime Minister of Malta, Dr Ian Borg, spoke at the 24th annual Commonwealth Law Conference.
In the second panel discussion, ‘Recognition (or not) of orders and agreements deriving from family law matters’ it was asked to what extent will the courts in State B recognise (or not) agreements in a family law matter, like a pre- or post-nuptial agreement, and/or orders from family proceedings in State A, which relate to people, property or structures in State B (for example, for the recovery of trust documentation, requiring attendance as a witness, for transfer of property or injunctive orders regarding taking proceedings out with State A, or a pre-nuptial, which has provision for property held in State B). To what extent would that provision be recognised in State B, what steps (if any) could be taken to recognise it, how long would that take the cost etcetera, and what could be done in State B (if anything) to put a spanner in the works.
In the third panel discussion, titled: ‘Asset recovery, enforcement and sanctions’, the discussion focussed on what steps can be taken (or not) in State B to enforce agreements or orders from State A: Asset recovery, tracing, enforcement and the impact of sanctions. Practical tips, timescales, costs and bear-traps. These interactive sessions with the audience were based on various scenarios within various commonwealth countries.
On Sunday, 6 April 2025, two programmes were held, namely –
- the Bar Leaders’ Summit was held for all Bar Leaders and was hosted by the CLA President Steven Thiru; and
- the Young Lawyers Programme, which was open to all young lawyers under the age of 40.
- Both programmes were well supported.
Democrats and despots – does consensus work?
On Monday, 7 April 2025, the Opening Ceremony was hosted by the CLA President, Steven Thiru.
The Commonwealth Lawyers Association held their 24th annual Commonwealth Law Conference in Malta from 6 to 10 April 2025. Deputy Prime Minister of Malta, Dr Ian Borg, spoke at the 24th annual Commonwealth Law Conference.
At the first plenary session, ‘Democrats and despots – does consensus work?’ it was stated that the Commonwealth Charter, which was adopted by heads of government a dozen of years ago, waxes lyrical about the importance of inclusion and consensus in decision making. The plenary looked at the record of the Charter from the perspective of the promotion of the rule of law and human rights – arguably the most difficult areas to achieve success (in the sense of enshrining values in domestic law) by consensus in such a diverse group of sovereign nations. It was asked whether the Charter is ever likely to be effective in holding to account regimes, which pay mere lip service to its aspirations and if not, will the Commonwealth ever live up to its Charter?
Fair and expeditious regulation of the legal profession
In the session titled: ‘Balancing scales: Fair and expeditious regulation of the legal profession’, it was stated that as guardians of justice, legal professionals play a pivotal role in society, and the mechanisms governing their conduct must evolve to meet the challenges of the modern legal landscape. The speakers explored innovative approaches to regulation, striking the delicate balance between accountability and efficiency. This session examined case studies, global best practices, and forward-thinking strategies, which aim to foster a legal environment where ethical standards are upheld, grievances are addressed promptly, and the pursuit of justice is swift and fair. The session examined the involvement of the executive government in regulation of the profession and critically examine the effect of such involvement on the profession’s independence.
Guardians of ethics: Exploring anti-money laundering laws
In another session titled: ‘Guardians of ethics: Exploring anti-money laundering laws in the Commonwealth and the delicate balance with professional privilege’, the panel addressed the intricate relationship between anti-money laundering (AML) laws and the sacrosanct concept of professional privilege. How do AML laws impinge or limit professional privilege? How can courts ensure this fine line is clear and not subject to interpretation (or misinterpretation)? The panel discussed and debated the challenges faced by legal professionals as they navigate AML regulations, while upholding the principles of professional privilege. Through real-world case studies and interactive discussions, the delicate equilibrium required to protect both the integrity of legal practices and the global fight against illicit financial activities was explained.
Dispute resolution in family law
In the last session for the day, ‘Dispute resolution in family law – best practice across the Commonwealth’, the introduction of alternative dispute resolution mechanisms in family law has proceeded to varying extents throughout the Commonwealth over the past two decades. Conciliation, mediation and arbitration, whether the mechanism of choice for separated couples, or mandated by legislation or judicial order, are features of modern family law. The experts discussed the best practices in Commonwealth jurisdictions, and whether these have been successful, or merely added to delay and trauma – particularly in cases where family violence is an aspect of the reason for relationship breakdown. The panel discussed what is the place of children in these processes – and can they be effectively heard.
The key point from this presentation was that lawyers do not have to be litigators – they can be peacemakers.
Judicial independence and parliamentary sovereignty
On Tuesday, 8 April 2025, the session titled ‘Judicial independence and parliamentary sovereignty’ touched on the article that the Guardian reported on three years ago: Haroon Siddique ‘Judicial independence tainted by ministers, Commons inquiry finds’ (www.theguardian.com, accessed 18-5-2025). One MP had suggested that ‘the role of Lord Chancellor had become “a political stepping stone from which to take pot shots at the judiciary”’. Is this a creeping attitude of Parliaments throughout the Commonwealth and is it a step too far beyond the Latimer House Principles? Law officers across the Commonwealth (including Attorneys General who are members of Parliament) are supposed to uphold the independence of the judiciary – not be the government’s chief critic of the courts.
The Commonwealth Lawyers Association held their 24th annual Commonwealth Law Conference in Malta from 6 to 10 April 2025. Attorney General Malta, Dr Victoria Buttigieg was one of the speakers at the opening ceremony. In the session, ‘Guardians of ethics: exploring anti-money laundering laws in the Commonwealth and the delicate balance with professional privilege’ the speakers from left to right were: Director Legal Policy and Research Unit, International Bar Association, Sara Carnegie; Managing Partner Theuri Wesonga and Co Advocates, Eric Theuri; International Secretary Malta Chamber of Advocates, Dr Davinia Cutajar; and Immediate Past President Malaysian Bar Council, Karen Cheah Yee Lynn.
The session examined the current state of the ancient tension between elected politicians and unelected politicians and identify jurisdictions where crises (ranging from, on the one hand, courts being denied appropriate resources to judges being dismissed, courts abolished, and worse) – through to unpopular legislation being struck down by activist judges.
Cross border property disputes between estranged couples
In the session: ‘Cross border property disputes between estranged couples – approaches across the Commonwealth’, it was said that in a constantly shrinking world, property disputes among separated couples may involve different jurisdictions. Real property, personal property, savings, pension and superannuation entitlements and choses-inaction are all subject to the laws of the jurisdiction in which they are found. What of the extraterritorial jurisdiction of family courts across the Commonwealth, and does this encourage forum shopping? How can the modern family lawyer properly and strategically navigate the litigation course ahead?
Women’s Round Table
At the Women’s Round Table on ‘How to thrive – not just survive – in private practice’ held on Tuesday, 8 April, it was state that for over two decades, women have graduated from law schools in equal or higher numbers than men. In most jurisdictions, women leave private practice in far greater numbers than their male counterparts. When women remain in private practice, they consistently earn less than men. They have failed to advance as partners in large firms despite their increased numbers in the profession. Departures in these numbers from private practice deprive firms and the public from the law’s ‘best and brightest’. Researchers, consultants, universities and legal organisations have consistently identified the issues. The question asked was whether there are solutions and how can they be implemented? It was stated that leadership must come from senior men, not just from women. Both men and women will benefit from the practical solutions developed across the Commonwealth, designed to help women to advance and flourish – whether as a sole practitioner or in a small or large firm.
Legal aid and the rule of law
On Wednesday, 9 April 2025, ‘Legal Aid and the Rule of Law: A critical intersection in access to justice’ was discussed. It was stated that access to legal aid is one of the most critical aspects to guarantee access to justice. Limited budgets for legal aid and remuneration of lawyers hinder this process.
Addressing this access to justice issue requires a comprehensive and collaborative approach involving government bodies, legal professionals, non-government organisations and community organisations working together to enhance the availability and effectiveness of legal aid services in Commonwealth countries. This session examined the role of government funding across Commonwealth jurisdictions, including the role of the profession and professional bodies in legal aid provision, and the economic benefit of a properly funded legal aid system.
Commonwealth children and the law – are we fit for the future?
In another session, it was stated that children’s rights are not special rights but rather the fundamental rights inherent in the human dignity of all people. In the session: ‘Commonwealth children and the law – are we fit for the future?’ it was stated that the United Nations General Assembly unanimously adopted the ‘Declaration of the Rights of the Child’ in 1959 and continues to promote public awareness of these rights by celebrating ‘World Children’s Day’, which is held annually on 20 November.
Some 30 years later, the UN General Assembly ratified the UN Convention on the Rights of the Child (UNCRC), which outlines the fundamental rights of every child. Some of the rights outlined in the UNCRC include –
- protection from violence, abuse and neglect (art 19);
- health and health services (art 24);
- adequate standard of living (art 27); and
- education (art 28).
Notwithstanding that, as of July 2022, some 196 countries, including most Commonwealth countries, had signed the UNCRC, however, there appear to be gaps in giving effect to these rights of the child. This observation raises the question of whether the rights of the child as outlined in the UNCRC should be incorporated into the laws of, and given effect, in all Commonwealth countries.
Most recently, at the Commonwealth Heads of Government Meeting in Rwanda in 2022, Commonwealth leaders signed the Kigali Declaration on Child Care and Protection Reform. This session will look at specific instances of injustices to Commonwealth children – ranging from misunderstanding of the doctrine of doli incapax, to erratic and politically motivated changes to the age of child criminal responsibility, to child slavery and its place in the product supply chain.
Artificial intelligence (AI) in the workplace
Looking at how AI works in the workplace, the tracking of data, the rights of the employer and employee, the use of AI to measure productivity, it is no wonder that one of the new terms of our time is ‘Algorithmic Management’. This refers to the use of AI or other algorithmic tools by employers in all aspects of worker management, yet there are still no explicit laws in the United Kingdom or the Commonwealth governing the use of AI in the workplace or the use of algorithmic tools. In the discussion it was stated that the resulting and inevitable conflict here with the old-fashioned idea that the old common law understanding of the relationship between employer and employee being one of personal service, which requires a degree of mutual trust and confidence between them.
International arbitration
In the session, ‘International Arbitration: Promoting legitimacy and robustness in a globalised arbitration world’ it was stated that international arbitration is the preferred method of resolving international disputes arising out of a range of commercial and political relationships. Contrary to its reputation among some, international arbitration is no longer held only in old European capitals and presided over by retired white judges. It is a global system operated all over the Commonwealth by jurists from every member state, deciding issues of great size and geopolitical importance.
Joanne Anthony-Gooden BJuris LLB (NMU) is the Vice President of the Law Society of South Africa.
This article was first published in De Rebus in 2025 (June) DR 9.
