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:
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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.
(The committee adjourned.)