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Proceedings of the Standing Senate Committee on 
Foreign Affairs and International Trade

Issue 10 - Evidence - Meeting of March 14, 2012

OTTAWA, Wednesday, March 14, 2012

The Standing Senate Committee on Foreign Affairs and International Trade met this day at 4:17 p.m. to study and report on the establishment of a "Charter of the Commonwealth" as agreed to by the Commonwealth Heads of Government meeting in Perth, Australia, in October 2011, and its implications for Canada.

Senator A. Raynell Andreychuk (Chair) in the chair.

The Chair: Honourable senators, today the Standing Senate Committee on Foreign Affairs and International Trade is continuing our study and report on the establishment of a "Charter of the Commonwealth" as agreed to by the Commonwealth Heads of Government meeting in Perth, Australia, in October 2011 and its implications for Canada.

At the outset, I will apologize for my voice. It seems that spring has come earlier and allergy season has taken its toll on my voice.

I want to indicate that originally the notice indicated a Mr. Fawzi Ghosn was scheduled to be here this afternoon, but, unfortunately, he had a car accident. We wish him a speedy recovery.

We were fortunate, therefore, to be able to talk to a youth representative. It was part of our mandate to look at youth participation and their look at the Commonwealth and this idea of a charter.

Representing the Youth Branch of the Royal Commonwealth Society is Adam Foote, Member, by way of video conference.

Mr. Foote, have you been able to hear everything I have said?

Adam Foote, Member, Youth Branch of the Royal Commonwealth Society: Yes.

The Chair: Thank you. You can proceed with your statement. Our process here is that we usually go to questions and answers. I hope you have an opening statement. I guess you were told about five minutes and then we will go to questions. Please proceed.

Mr. Foote: Hello, everyone. It is a tremendous honour to have the opportunity to speak with you. I am a second- year student at Memorial University in Newfoundland, studying political science and history. I am here on behalf of Mr. Fawzi Ghosn, who could not be here today. I will now read the opening statement written by Mr. Fawzi Ghosn and Alicia Swinamer, who worked tirelessly on this initiative.

Good afternoon and thank you. It is an honour to be here. Once again, my name is Mr. Fawzi Ghosn and I am a fourth year Carleton University student studying political science and human rights. I am also a youth member of the Royal Commonwealth Society, Ottawa Branch. I am here representing the youth perspective on the Commonwealth and the proposed Commonwealth Charter. I would like to give you a brief background on myself and how I have been involved in the Commonwealth. I hope that will give you a better idea of how I am representing young people today.

It all started six years ago. I was sitting in my grade 11 geography class and my teacher quickly mentioned an upcoming conference that would be taking place in a couple of month's time. There didn't seem to be much interest but I decided to apply and was accepted as a delegate to the Thirty-fifth National Student Commonwealth Forum. This one conference started a chain of events in my life that has led me here today.

In 2010, I ended up co-chairing the Thirty-eighth National Student Commonwealth Forum, which aimed to bring about 80 high school students from across our country to Ottawa for a week-long forum that involved a Senate debate, a model Commonwealth Heads of Government Meeting, a humanitarian event and much more.

In September 2010, I was in Kigali, Rwanda, through the Royal Commonwealth Society's NKABOM Youth Leadership Program, which focused on conflict resolution and peace building. There were 38 of us from 35 Commonwealth countries.

In 2011, I had the honour of representing Canadian youth at the Commonwealth Youth Forum, held in conjunction with the Commonwealth Heads of State in Perth, Australia. Recently, my colleague and I, Alicia Swinamer, co-founded a two-day conference called MY Commonwealth, which seeks to engage university and college aged students and young professionals in the wider Commonwealth. It will also include sessions on EPG recommendations. Through this engagement, I have become familiar with the youth perspective on the Commonwealth. I have consulted with young people from across Canada on the proposed Commonwealth Charter and have had the opportunity to have informal sit-downs with a handful to get their feedback. What I am presenting to you today is perspective on the Commonwealth and the charter through my experience working with young Canadians in the Commonwealth and through my recent consultations.

When I did my consultations with young Canadians, it turned more into discussion about the Commonwealth in general than the actual charter itself because I feel the charter ought to stand for the Commonwealth and its principles. Specifically on the charter, there was a general consensus that if we believe that youth are truly the future of the Commonwealth, as the charter states, the clause on youth should be in a more prominent position and not simply a vague or demographic statement. It should boldly state what role youth ought to play in the Commonwealth's future. The questions I and many others asked were: How, exactly, is the charter empowering youth? What role do youth have to play in the Commonwealth? We are the future of the Commonwealth; we make up 60 % of the Commonwealth's population and, like the charter states, we should be involved in the governance, institutions and diverse voice of the Commonwealth.

As we are well aware, the Commonwealth's theme this year is Connecting Cultures. In Her Majesty Queen Elizabeth II's Commonwealth Day's message, she states that we live in a technological world and the benefits of this is that it offers a "range of opportunities to understand and appreciate how others live: we can see hear and enter into the experience of people in communities and circumstances far removed from our own." We live in a Facebook world where there are more people on Facebook than there were on the planet 200 years ago, and they can interact in real time and share ideas, values and solutions across the globe. Youth are innovative and passionate and care about more than just "youth issues." We do not want to be segregated and boxed in to just "youth issues." The EPG was tasked with recommending ways to reform the Commonwealth and make it more relevant in today's society. What better way to invigorate the Commonwealth than to empower youth? As the youth section in the EPG report states, "Young people play an active role in society in many ways — they often have more energy, creativity, idealism and motivation to want to shape a positive future."

By virtue of being young, we can say and do things that older generations cannot. This allows us to be outspoken, be bold and go into situations and build bridges where others can't and won't. Many interstate sport programs give evidence of how young people can break down barriers between nations in conflict. In a Commonwealth context, when I was with the NKABOM conference in Rwanda, I spent 14 days with 38 young people from all over the Commonwealth, including two delegates from India and Pakistan. We discussed and shared our individual experiences with conflict and peace, how we were affected by these situations in our respective countries and how we overcame these issues.

Youth felt that in regard to section 23 of the charter — that silence should not be an option for the Commonwealth — the Commonwealth should consistently speak out and take action when these values of human rights, good governance, democracy and the rule of law are not being met in member countries. On this point, young people felt that the Commonwealth should take a stronger position on Sri Lanka and not hold the 2013 Commonwealth heads of government meetings there until these issues have been dealt with.

With regard to section 20 of the charter — on the Secretary-General — there was agreement that the Secretary-General should take a more prominent role in the Commonwealth to promote the Commonwealth's values, to exercise soft power and to be the face of this organization. The Commonwealth has been the strongest where there was a strong Secretary-General. He or she should unite the members of the Commonwealth and lead efforts to uphold its principles.

With regard to section 25.2 — on building bonds and linkages — young people felt that there is a lot more that they can do by interfacing with young people from across Canada and the greater Commonwealth, by using technology and exchanges. In this manner, young people support a Commonwealth Corp as recommended by the EPG. If I could give a quick example of the potential and benefits of these linkages, in my time spent with the Commonwealth Youth Forum last October in Perth, I met a young lady who works with at-risk youth in her respective community, working on issues of drug and crime prevention. I live in West end Ottawa, in a community formerly known as Bayshore but now Accora Village. We have a Bayshore Youth Council that engages our young population and we deal with the same issues that she does. The CYF gave us the platform to connect two communities that will hopefully link in with one another and share their ideas and concerns.

Some general points: Young people felt that the charter was too long, uninspiring or they would not or could not finish the whole document without skimming through parts. There was also agreement that the United Nations is mentioned far too often and that it seemed almost apologetic for not being the UN. The Commonwealth should be confident enough in its own unique sets of values to stand strong on its own and not disregard the fact that it works with other organizations.

On the Commonwealth in general, young Canadians felt that, just like my experience, the Royal Commonwealth Society's report on "Common What?" confirmed that not many young people know or care enough about the Commonwealth. However, just like me, when they experience the Commonwealth and become an integral part of it, many of them suddenly want to be engaged. For this reason, there needs to be greater awareness and education about the Commonwealth. I will give you another quick example. Each year, the co- chairs of the National Student Commonwealth Forum have to make hard decisions on whom to let into the Planning Team, usually accepting a maximum of 30 young people. They receive almost as many applications for the Planning Team as delegate applications. This tells us something! It tells us that the NSCF is a hidden gem and that, when it's discovered, it sparks interest and passion, which is slowly getting harder to find in today's youth.

Furthermore, in terms of education, promotion and profile, it is felt that if more people were aware of the Commonwealth and its decisions, such as a suspending a member, that it would hold more weight. For example, the idea behind suspension is in part to embarrass a country, but if the Commonwealth is not seen or heard as a valuable or prominent organization, its decisions are not as influential. In this crowded world of NGOs and international organizations, if the Commonwealth does not reform itself into something that is unique and meaningful to today's society, it will ultimately become irrelevant. This is why investing and empowering youth is so important. The last two Commonwealth Youth Forum themes were Invest in Youth, Sustain the World, in 2009; and Our Commonwealth, Our Future, in 2011.

The Commonwealth resonates with youth in terms of its values and principles. Young people are drawn to the idea of democracy, human rights, the rule of law, responsible government, consensus building and finding positive solutions to global issues. We view the Commonwealth as a platform for capacity building and prevention as opposed to simply being reactionary. We appreciate the role that the CMAG plays and feel that it should be strengthened. We also find it valuable that the Commonwealth suspends and readmits countries based on whether or not they uphold its values.

In conclusion, the Commonwealth and young people have a lot in common. Like a young person, the Commonwealth has a lot of potential. It reinvents itself and goes through phases, like decolonization, fighting apartheid and climate change. Right now, just as young people go through experiences and build their identities of who they are, we are discussing today what the Commonwealth is and what role it should play. Young people relate to the Commonwealth and its values and want to play a stronger role in shaping and having greater involvement in the Commonwealth. Again, young people believe that there should be a Commonwealth charter, and that it should clearly and concisely lay out its values and principles and feature youth and their role in the Commonwealth more prominently within the charter.

Thank you for giving me the opportunity to speak with you today and, more importantly, for asking for a youth perspective. I feel that this, in itself, is an important step, especially since Canada, because it does not have a minister of youth, has no Canadian representatives to the CYP and thus no official voice in the Commonwealth and our Caribbean region. I am now open to any questions that you may have.

The Chair: Mr. Foote, thank you for your introduction. We are having some technical problems. We can see you. It is like a photograph, but your voice is coming through loud and clear, so we can continue.

Thank you for your comments and some of the observations with respect to the Eminent Persons Group in general. The task that we were asked to deal with was the actual charter.

On the one hand, you said that reading through everything it seemed like too much like the UN and apologizing for not being the UN. On the other hand, you said that there should be a charter that put in values and principles of the Commonwealth. What are those values and principles that you think should be in there because you said you want it shorter? I agree with you — something manageable.

What would those values and principles be from your youth perspective?

Mr. Foote: Primarily democracy, human rights, the rule of law and responsible government, with particular emphasis on consensus building and finding positive solutions to global issues.

The one thing that we all agreed on as youth was that youth were not featured prominently the charter. If youth really are the future to the Commonwealth, we need to be involved right now because years and years to come, we will be the ones to lead the new Commonwealth.

The Chair: When you say that a lot of people do not understand the Commonwealth, what is it that is unique about the Commonwealth? Why do you support it? If you were just talking to another student in your university who had not had your experiences, what would you say to them about why the Commonwealth? Why not some other organization? What is unique about the Commonwealth to you? The values and principles that you stated are excellent. I think they are Canadian values; they are universal values. However, there are other organizations doing them; certainly governments are.

What is it that makes you excited about the Commonwealth that you cannot get in another organization?

Mr. Foote: The idea of the Commonwealth heads of government meeting promoting consensus. It is the simple idea that if one person is not happy, none of us are. It might seem naive and childlike, but in our always globalizing world cooperation seems to be more of a sure fire plan of intervention. I am saying that the idea of consensus is what draws me especially to the Commonwealth, and the idea that nations can work together and build a resolution that is mutually beneficial.

Senator Wallin: Thank you for your views today. You kind of put your finger on what the chair was trying to say there when you said "Common What?" as opposed to "Commonwealth" and the appeal that you laid out.

What we are trying to get at is why you think this forum, yet another international forum — and as we have heard from many witnesses, with no particular teeth or enforcement powers to respond to or react to the bad behaviour of members — is needed.

My second point, which I will just throw out, is that, for some of us who have been around a bit longer than you have, consensus often equals deadlock and not resolution. Could I have your views on those two things?

Mr. Foote: In some sense, I think consensus can lead to deadlock. As long as conversation is open and transparent, and you have people who are willing to talk things out, consensus can lead to resolutions.

What was your first question again?

Senator Wallin: We have heard a lot of testimony about this body with a charter — whatever that charter looks like. Should that charter have any enforcement capability, any teeth, any ability to say to members whose behaviour does not live up to the values and ideals that you outline that the charter itself should wrestle that issue?

Mr. Foote: I think it should, personally. Recently the Maldives were suspended because they did not hold certain values of the Commonwealth. I think the charter should have that power.

Senator Wallin: How would that be decided, then, in your mind? You are to have a meeting and say, "Okay, country X is falling out of line here," yet you want consensus. This is exactly the problem we see in the UN and in other places. You have either vetoes or the need for consensus and nothing much can actually get done.

Mr. Foote: Yes. That is an excellent point. As you said, if country X is to be suspended, will consensus be reached? I am not sure how to answer that question.

I will have Alicia Swinamer and Mr. Fawzi Ghosn follow up with that.

Senator Wallin: All right.

The Chair: I want to follow up on your structure. You are representing the youth of the Commonwealth in Canada. Is there a formal structure or are you a group that has just been formed and are under the wing of the Royal Commonwealth Society?

Mr. Foote: There is no formal group that I know of. We are just a group of young people that are passionate about the Commonwealth, about what it represents and about its values. As far as I know there is no formal organization other than the NSCF, the National Student Commonwealth Forum, which educates high school students about the Commonwealth and is sponsored by RCS Ottawa.

The Chair: If there are no further questions, Mr. Foote, you have done an admirable job jumping into the debate here and presenting the paper from Mr. Fawzi Ghosn, who, regrettably, had an accident.

We were interested in receiving your perspectives and we received them. As a youth, you have done that very well. You have put it out frankly and in short form. Sometimes we have witnesses who take a long time to get to the point, but you have answered the key questions that we needed from you and we thank you for the time that you have taken to be with us.

Mr. Foote: Thank you very much.

The Chair: Senators, our next witness, by way of video conference from Sydney, Australia, where it is approximately 8:15 a.m. on Thursday, March 15, is the Honourable Michael Kirby, Former Justice of the High Court of Australia and Member of the Eminent Persons Group. Mr. Kirby has been fingered by one of our colleagues as being the person who knew most about charters and rights and was involved in the actual drafting.

Welcome to the Standing Senate Committee on Foreign Affairs and International Trade, Mr. Kirby. I am apologizing for my voice. We are experiencing spring early and the allergies have hit. We trust that we did not get you at an inopportune time at 8:15 in the morning, but it was the only way we could coordinate our efforts and finish our study in a timely fashion. The senators have had the benefit of a longer CV, so I have curtailed it for the benefit of receiving your comments and entering into a question and answer period.

The floor is yours, Mr. Kirby, and welcome from Sydney.

Hon. Michael Kirby, Former Justice of the High Court of Australia and Member of the Eminent Persons Group, as an individual: I want you to thank you for having me. It is not early for me; 8:15, the day is half over. I have come here to be of assistance to the committee. As with previous speakers — for I have seen the transcript of some of your hearings — I will say a few words and then submit myself to questions from the committee.

I cannot see the committee at the moment; I can only see a portion of the back of the committee room. However, if you can see me, I will proceed.

When I was a boy, in the immediate post-war period in Australia, I went to public schools. In my public school in the year 1949, all the children received a copy of the Universal Declaration of Human Rights. That instrument had been adopted by the General Assembly of the United Nations in December 1948, as we all know. It was gaveled into effectiveness by a distinguished Australian, Dr. H.V. Evatt, who was the leader of the Labour Party subsequently but who had been a justice of the High Court of Australia as I also was. When I received that, we were taught by our teachers the values that were expressed in the Universal Declaration of Human Rights and the obligation of all of us, as part of humanity, to search for the common values we shared so as to ensure that the terrible sufferings that were then vivid in memory of the Second World War were not repeated. I saw, at a very early stage in my life, the value and effectiveness of the day as a non-justiciable but powerful instrument which would express the things that brought us together as human beings and that defined, in that instance, one of the three great purposes of the United Nations organization.

Subsequently in the 1980s, I was elected a commissioner of the International Commission of Jurists in Geneva and I had the privilege of working with a Canadian commissioner at the time, Professor John Humphrey. John Humphrey was one of the great international lawyers of his generation and one of the most influential. In our idle moments at meetings of the ICJ, John Humphrey would describe to me the work he performed under Eleanor Roosevelt in the early years of the United Nations working on the drafting of the Universal Declaration of Human Rights. John Humphrey would describe how he would get on the bus at Lake Success, where the United Nations General Assembly and secretary were then based, and he would draft the first drafts of the Universal Declaration of Human Rights.

That brought home to me the powerful message also taught by V.I. Lenin, namely, that the enemy to action in this world is to do nothing and that the blank page is always there at the beginning. When, subsequently, I was appointed to the Eminent Persons Group, the question arose at our very first meeting, from the chair, Tun Abdulla Ahmad Badawi, former Prime Minister of Malaysia, as to whether we should have a charter of the Commonwealth. I therefore turned over in my mind what such a charter would include. I thought that safety in securing the adoption of the charter by the 54 member countries of the Commonwealth would lie in looking to the previous declarations of the heads of Commonwealth. Therefore, that became the basis of the document which is before the committee. I took it upon myself, like John Humphrey, to put the first words on paper. They will not be the last words, but they will, I hope, assist the committee and assist like committees in Parliaments throughout the Commonwealth of nations and the officials who will be working on this project so that, in the end, we can do in the Commonwealth what Eleanor Roosevelt and her committee and John Humphrey did in the United Nations: get together for school children, for citizens — for the milkman, as someone said in your committee — the values of the Commonwealth. It will be briefer than my document, but my document is put before the committee and the Commonwealth as a start.

The Chair: Mr. Kirby, I understand you still cannot see us, is that correct?

Mr. Kirby: I cannot see you, but I can hear you loud and clear.

The Chair: Thank you. I will ask the senators, in their questioning, to identify themselves so that you will have an idea of who is asking a question. I will turn to Senator Wallin first.

Senator Wallin: We are pleased that you cannot see us. We are the young ones — we will say that, but only in our own minds.

Thank you so much. Your phrase was that yours were some of the first words but probably not the last. With the clarity of even a brief bit of behind sight, what do you think is missing?

Mr. Kirby: First, as I said, I think it is too long for the purposes that I had in mind. That is to say, it should be available for instruction and for the information of citizens. I think that could possibly be solved, for a start, by taking maybe the first line or the first phrases of the paragraphs in the document and seeing how that then fits together.

As to the things that are missing, one thing which is of interest and importance to me is to respond, as the Eminent Persons Group endeavored to do, to the particular problems of gender and sexuality in the Commonwealth of Nations. These are two areas where the Commonwealth does not have, in a number of countries, a perfect record.

I was myself particularly interested in how the Eminent Persons Group would deal with the issue of sexuality because of my own sexuality as a homosexual person. I knew that in 41 of the 54 member countries of the Commonwealth, the old British sodomy laws are still in force. In a perfect world, I think it would be good if we had in a charter something specific about that subject. However, we have to be respectful of the pace at which the Commonwealth and its member countries work. In paragraph 11 there is a phrase that says "or other like cause." That was left there in those terms much as the universal declaration has them in order to allow the charter to grow as the Commonwealth itself grows in its understanding, especially on issues of gender and sexuality.

Senator Wallin: You have raised an interesting point. We have been asking this of all of our witnesses, but because you are so intimately involved in this, explain to us why, because as you laid this out, these are complicated modern issues in which some member states might have religious and political responses to those kinds of issues, you feel that this is the vital international organization through which to change these attitudes and lay out these values and systems? We have so many international bodies. Why this one?

Mr. Kirby: This body, the Commonwealth of Nations, declares itself to be a values-based body and to take values seriously and to remove countries from its table if they do not comply with the values. In that respect, it is somewhat different from the other bodies. The G20 does not do that; the G8 does not do it; the United Nations itself does not remove member countries.

I was special representative to Cambodia and I can tell you for more than a decade after the fall of the Pol Pot regime, the Khmer Rouge sat at the table of the United Nations as Democratic Kampuchia. The Commonwealth is in a sense a hope for the world with a quarter of humanity, as a body that aspires to and asserts that it is based on values, as a body that should live up to those values. It should express them and should have a mechanism to ensure that its member countries do live up to the values, because without values there is not a lot of point in having the Commonwealth. That is why the charter as an instrument that expresses the values is really a core document and a core recommendation of the Eminent Persons Group.

Senator Wallin: What about the differences between values as expressed, which many people and countries can agree to, and activism, which some might interpret your priorities to suggest?

Mr. Kirby: One person's activism is another person's essential human values. I remember when in Australia any moves to protect the rights of women were described as activism. I know in my own life, having seen the journey of the law and of social attitudes in my own country, that change does not come overnight, but change can be helped by aspirational documents. That was the role of the Universal Declaration of Human Rights is still is, in an imperfect world.

Activism in the pursuit of fundamental human rights is not something we should be ashamed of and in the Commonwealth, as a body that is aspiring to values and to be a values-based organization, is something we should be proud of and be advancing.

Senator Wallin: Thank you very much for that answer. I appreciate it.

The Chair: Mr. Kirby, you say that the United Nations document is aspirational. It is more than that because when the Universal Declaration came, it was a way of joining the UN. You had to agree to these principles and the declaration, but very quickly it was followed up two instruments that had more teeth. Over the years, there have been levels of compliance documents. For example, we have the Convention on the Rights of the Child. Out of it grew the International Criminal Court. We have the International Covenant on Civil and Political Rights. We have the International Covenant on Economic, Social and Cultural Rights. All of these have strived to get at implementation. Is that your idea here, that if you start with an aspirational document, to make it workable you would have to continue the process into some action-oriented or implementation document? Otherwise, aspiration turns into disillusionment.

Mr. Kirby: I agree that is always a danger in a pure aspiration. That was why the Eminent Persons Group advanced the notion of having a commissioner for democracy, the rule of law and human rights. That commissioner we contemplated would be the fact-finding instrument, the person who would go to the field, the educational instrument, and would be a means, albeit a soft means, to carry the aspirations of the charter into effect.

At the CHOGM meeting in Perth, the idea of a commissioner did not immediately gain a consensus, and whether or not it will gain a consensus I am not sure. Whether a charter of the Commonwealth might go on, as in the case of the universal declaration, to become the inspiration for a treaty within the Commonwealth, that is not an impossible dream, but the first step is to get a document that expresses in the name of the people of the Commonwealth the values that the members of the Commonwealth aspire to and accept.

Until now, the values the Commonwealth have been expressed by the heads of government and, as it were, handed down from on high by the heads to the people, but the notion of this document is to assert those values in the name of the people of the Commonwealth as the things that we, a quarter of humanity, hold in common and hold our governments, legislatures and instruments of government answerable to.

The Chair: I will follow up with that, a document of the people. If we were talking in the 1970s, I can envision that a group of eminent persons, then the heads of state can put forward a document and try to disseminate the information in that document to reach somewhat of a consensus of the respective nations that this really reflected their values.

Today, it seems that everywhere I go working on foreign policy there is a push-back from people saying, "You cannot give us a document and say it speaks for us." I take the NEPAD document in Africa where the leaders came together and said, "No longer are we going to be listening to others telling us how to develop and sustain our countries; we will put out principles." The push-back came from the people saying, "You did not consult us. There was no referendum." In fact, Parliament is not mentioned in there.

How do we make this charter a people's charter?

Mr. Kirby: The process in which we are engaged now, today, is part of that process. One possibility, which I think was explored at the CHOGM meeting in Perth, is that heads of government should adopt the document because it reflected much the values that had been expressed over the last 30 years at the end of CHOGM meetings of the Commonwealth, but it was exactly for the reasons you have mentioned that that idea was rejected and the process of consultation was put in place.

If we are practical, to ask 2.1 billion people to draft a document is just not feasible. As V.I. Lenin says, you have to have a paper and the document has to have a start. If the process of consultation is serious, respectful and effective, then one hopes that out of it will come a document that will at least be reflective of the people of the Commonwealth.

I congratulate the government of the Senate of Canada for having this committee examine the matter and in that way indirectly tapping the types of opinions that would exist in the Canadian community, with all of its diversity, as diverse as the Australian community is.

The Chair: In my work in foreign policy, I spend a lot of time in Africa. There is a push-back saying this is a human rights code in disguise. It is not an aspirational document of what draws the Commonwealth together, and they point out the Harare Declaration, that it really is a human rights code and an imposition, therefore.

Whether that is fair or not, how do we rebut that? Is it by keeping to our values? Is it by keeping it aspirational but also having what binds Commonwealth members together because those values embodied in the Commonwealth documents to date are also in NATO documents and in every other regional document?

If these values are important, which people say they are, why do it through the Commonwealth? Why would we link up through the Commonwealth when we have the UN, when we have all these other organizations? What is the value added of doing it within the Commonwealth?

Mr. Kirby: That question was raised in Perth during the discussion by the heads of government. If I say so, respectfully, it is a very fair question. However, if you have a body that endlessly says it is a values-based organization, you do have to have someone attempting to express the values. Unfortunately, that has fallen to us to try to do that.

I think the answer is many of them will be the same as the other instrumentalities, but that is because they are universal values and we should not be ashamed of the endeavour to express them within the Commonwealth.

The Chair: I think from a political point of view — we are sitting here as a Senate — they will say: That is fine, and we should use every opportunity whatsoever to express our values.

What is it about the Commonwealth that these particular members should continue to stay together? As I read in your report, you have said the Commonwealth is in need of reform or it will become irrelevant. I am being blunt about that. What is the compelling argument that we can put in a report, or advice to the minister, to say that the Commonwealth is relevant, that it has a tool or something within it that those other organizations do not have and, therefore, is a valuable avenue to pursue our common values?

Mr. Kirby: Well, the Commonwealth is made up of member states that voluntarily join it. They do not have to stay members. They can leave, but none of them generally wants to. Zimbabwe has moved out for a time, but that was done because it looked in danger of not being accepted in the Commonwealth.

It is a voluntary organization, and it is a unique organization. It brings together a quarter of humanity. What is peculiar and special in the Commonwealth, in my view, is the fact that it not only aspires to what we call civil and political rights, but is strong on the issues of development. It saw, before many of us in the Western countries did, the fact that without a universal attack on poverty, the talk about universal human rights will often just be talk. You have to have the response of the international community to the burden of poverty, which is a kind of modern slavery, which, like slavery in the 19th century most people just accepted, but, ultimately, the world responded. Hopefully, the world is responding and will respond to poverty, and the Commonwealth is the unique organization of people who want to be members, who have common institutions, who use, generally, English as a common language, who aspire to common values but who mix the aspiration of universal human rights with the aspiration of an effective attack on the issues of development and poverty.

The Chair: Thank you. I will turn to Senator Smith now.

Senator D. Smith: Today, our first witness was the university student from Newfoundland, who, as soon as he referred to the values, rode right off — democracy, rule of law and so forth. That took 15 seconds.

On the human rights issues, the point you raised about gender and sexuality are valid points.

With respect to religious freedom, I am big on that. I wonder whether that might have some attention.

One issue that is relevant to Canadians is minority rights and Aboriginals in particular. I know there has been some reference to the right to protect. I believe that was the 2001 UN declaration on the right to protect certain minorities.

Do you have any thoughts on those other categories? I think they are meaningful. I agreed with your initial comment about doing a little pruning at the beginning of a few sentences, where we just do not need platitudes but to get to the fundamental things that need values.

Mr. Kirby: I am in agreement with that aspiration, and a start could be made just by, as it were, taking out the supplementary words that follow the opening. Generally, the idea is in the opening, and then elaborations and examples follow on. It would be a valuable exercise to see what that looks like, to see if that gets the "guts of it," as we would say in Australia, and conveys the essential notions.

I am big on religious freedom, too. A great judge in Australia, Justice Lionel Murphy, used to say that section 116 of our Constitution guaranteed the right of freedom of religion and freedom from religion, which he said was just as important, and the freedom to change religion, which is not observed in some parts of the Commonwealth.

Paragraph 11 of the charter does assert that there will be no discrimination whether based on race, ethnicity, creed or gender or other like cause. There is a reference to creed in paragraph 11 and, I think, elsewhere in the charter. I believe the issue of Aboriginality or indigenous people, which, of course, is very important to us in Australia, is somewhere in there.

The Australian government for the CHOGM meeting prepared a document, and I do not know if members of the committee have it. It is a document that indicates where each of the paragraphs comes from, and it gives the history of each of those paragraphs so that it will be seen that if there is verbosity and generality, it is because that is what the Commonwealth had in the past. We could tighten it up by abbreviating it, I think. Going back to my own experience with the universal declaration, I sometimes think shorter is better, and I would expect something along those lines will come out.

I have been asked to stand by in case I am needed by the officials for the meeting that will take place in London in April, which will be looking at the document. If that comes to pass, then I will certainly be turning my attention to the type of questions that the senator has just raised because both of them are important to me, and, I think, to the world — freedom of religion and the freedoms of indigenous people who often did not get a good deal in the old days of the British Empire.

The Chair: The issue that seems to be prevalent in the countries that make up the Commonwealth is equal access for trade and investment, and economic development seems to be on the forefront as much as the others. It has been signalled, certainly, through many of the countries that unless there is the economic development and the progress and access to international institutions that govern us, you will not be able to pursue all those other values, that it is conditional to those. What is your thought on that?

Mr. Kirby: I would agree entirely and that idea is reflected in some of the aspirations. We thought that increasing trade, given that we share the commonality of the English language and very similar institutions, that there would be economic efficiencies in intra-Commonwealth trade. That was a point that Lord Howe, the minister in the United Kingdom, repeatedly stressed to the members of the committee. There is some evidence, which is referred to in the Eminent Persons Group, of a significant growth in internal trade within the Commonwealth, but there is further evidence that rather suggests that that is among the wealthier or more developed members of the Commonwealth plus India.

I entirely agree with the senator's observation. What we have to do is try to make sure that this, without reviving empire preference, is something that the institutions and laws of Commonwealth countries facilitate and encourage. That will be the main way that the problem of poverty is tackled. It will not be tackled only by grants from aid agencies; it will be tackled at home by more efficient economies.

The Chair: One other area that we would appreciate your advice on is the fact that while you talk about heads of state and you talk about the people, Parliament is often a key to the furtherance of human rights values. Therefore, should there not be more emphasis on the role of Parliaments in a free and democratic society? If in fact the Commonwealth were to embrace that area, would it be a great service to the people within the Commonwealth?

Mr. Kirby: We certainly recognize that. One of the problems of the Heads of Government meeting and the declarations being agreed amongst Heads of Government is that generally that is the executive government speaking and that undervalues one of the core institutions of Commonwealth existence, which is the democratically elected legislature.

In paragraph 9 of the values of the Commonwealth we say that we recognize the importance of maintaining the integrity of the distinctive functions of the legislature, the executive and the judiciary. That was a way of trying to express the fact that at the very beginning of this draft charter the distinctive functions of the legislature, being the first instrument of government mentioned, has to be respected and upheld. I agree with what has been said.

On the other hand, because this is a document, which has drawn on the previous Heads of Government declarations, references to the legislature have not been very strong in the past. Maybe they should be strengthened in the document as it finally emerges, but that will have to get through the Heads of Government.

The Chair: In the absence of being able to put a charter together and to take it to the people, it would seem that some aspect of moving this charter to a parliamentary level where there are different opinions — opposition members — would be helpful. I am mindful that with so many countries in Africa have gone through a process of constitutional renewal. The people, for example, in Kenya were given a Constitution to consider for some time and then they voted to avoid falling into the trap of the recognition of anything in their name. Would it not be rather feasible that the consultation that should continue, not like we are having now but actually the charter when it is developed, and that it be tabled at least in the parliaments if not approved by the parliaments?

Mr. Kirby: That would be a matter, I suppose, to be decided in accordance and with the practice and wishes of each member country. Some countries might take that course and others may take another. I am, of course, mindful of the fact that one way of preventing action on the Eminent Persons Group report is to say, well, let us have a royal commission or some other inquiry into the matter or let us postpone it. Today in Australia is the ides of March and we could contemplate postponing this until the Greek calends.

Unfortunately, unless we take some initiative, we do not have a lot of time. The Commonwealth does face some dangers and I happen to believe, respectfully, that if the Commonwealth were to fade away it would be a great tragedy for humanity because there are not many bodies which come together with so many commonalties, which want to come together and where the Heads of Government actually talk to each other and do not only do that through officials. They go off, rich and poor, big and small, every continent, 2.1 billion people represented. It is a unique phenomenon and we should make sure that it is a phenomenon with a few more institutions to make it more true to its boosts of being a values-based organization.

Senator Wallin: Senator Andreychuk has sparked a question then because if there is no approval by the people or by the parliaments of the member countries does it have the moral authority? Then, can the secretariat itself actually uphold or enforce — I hate to use that word — the values if there is no popular political support for it or if it has not been signed off on?

Mr. Kirby: This is always the problem with international law and international institutions. The universal declaration did not go to a referendum of all the people of the United Nations, nor did the Covenant on Economic, Social and Cultural Rights, or the Covenant on Civil and Political Rights or the Convention on the Rights of the Child. You have to trust your own institutions to scrutinize these matters in the international sphere and every country with do it in a somewhat different way.

I respectfully applaud and honour the way the Parliament of Canada, the Senate of Canada, is going about this in a serious way. I hope that similar moves are afoot in other countries of the Commonwealth. I know there has been in the United Kingdom. I myself took great pains in consulting the government and the opposition and the major parties in the Australian Parliament, out of my respect for the parliamentary institution and the way we do things in Australia. I hope that is happening all around the Commonwealth.

The Chair: Mr. Kirby, we are under some time pressures. The Parliament changed its rules and its scheduling, so we have to curtail the meeting a little earlier to accommodate the Parliament. That is an ongoing challenge here in Canada.

Your name has been linked to the proposed declaration as the inspiration for this document, so we were very pleased you could give some time out of your very busy schedule. We were trying to catch you in many countries and we finally found you in Australia again. We very much appreciate your advice and perspectives. I must say your passion for human rights and for the work you do challenge us to meet your commitment. We hope we will do so in our committee.

Personally, I am absolutely delighted to have you here. It is probably the first time I have had the pleasure of cross- examining a former justice of the High Court of Australia. I do not think I have ever been given that right in Canada so that is another challenge that you laid before me.

Thank you very much for accommodating us. We hope that something in our report and advice to our foreign minister and to the Commonwealth community here in Canada will resonate with you.

Thank you, Mr. Kirby.

Mr. Kirby: Thank you, Madam Chair, and I honour the people of Canada, the Parliament of Canada and the memory of John Humphrey, who was a very great Canadian. I think if he had been here he would have been saying the same things as I did.

The Chair: He might have said, "Get on with it," too.

Thank you.

(The committee adjourned.)