OPENING REMARKS BY H.E. MR JAMES BATLEY, AUSTRALIAN HIGH COMMISSIONER TO FIJI AT THE UNDP/REGIONAL RIGHTS RESOURCE TEAM’S REGIONAL LAWYER’S CONFERENCE ON HUMAN RIGHTS CONVENTIONS & THEIR DOMESTIC APPLICATION, RULE OF LAW & HIV & THE LAW THE PEARL, PACIFIC HARBOUR, FIJI ISLANDS
13-17 AUGUST 2007

Distinguished guests, participants, ladies and gentlemen, I am honoured to have been invited to open this conference on Human Rights, International Conventions and their Domestic Application, Rule of Law and HIV and the Law.

At first glance that looks like a very wide range of topics, although it seems to me that there is a common thread that links these topics together: that thread is the law or more specifically the rule of law.

Australia is pleased to support this conference through our core funding for RRRT. Australia is strongly committed to supporting the rule of law, in its broadest sense, in our region. We do so for a range of reasons. We do so because we believe in the rule of law as valuable in its own right. We do so because international and regional experience has taught us that strengthening the rule of law, in its broadest sense, can play an important role in the fight to reduce poverty in developing countries. We do so, too, because breakdown in the rule of law in one country can affect others, and contribute to regional instability.

These issues are not just theoretical. They are of direct and immediate relevance to our region today. The rule of law is, and has been, under pressure in parts of our region.

You will all have your own personal experience and perspectives on this. For my own part, in my former job as Special Coordinator of the Regional Assistance Mission to Solomon Islands, I have seen at first hand the impact on a country of the virtual collapse of the rule of law in the early part of this decade. That helps to explain why RAMSI – which enjoys very strong support from the Australian Government – has always had such a strong focus on the law and justice sector.

In this country, Fiji, it is impossible to ignore the issues relating to the rule of law and human rights that have arisen since the overthrow of the government in December last year. In this context, you will also be aware of challenges facing your counterparts in the legal fraternity in this country. Those challenges are recognised more broadly in the international community: for instance, as you may also be aware, the United Nations Special Rapporteur on the Independence of Judges and Lawyers has recently written to the interim administration asking to visit Fiji. I would hope that the interim government responds positively to this request.

Against this background, it’s worth asking ourselves what seems like a simple and basic question: Why is the rule of law important?

In a speech on Indigenous Fijian rights and the rule of law, Fiji’s former Vice President and High Court Judge, Ratu Joni Madraiwiwi stated that :

(The rule of law) provides protection and security to everyone irrespective of who they are or what they have done … Its genius and vibrance lie in the collective acceptance of society that all are subject to it.

Where the principle is sacrificed on the altar of …. some other cause, that fundamental safeguard is removed. Nothing is sacred. Arbitrariness and whim prevail. Decisions are taken at the will of those who rule… The rule of law establishes the scope of acceptable conduct.

What Ratu Joni is suggesting is that the rule of law is primordial. By providing the promise that the law applies to all, that all are equal before the law, the concept of rule of law provides, in its most basic sense, a template and framework by which people can order their daily lives and reliably predict outcomes. This is security in its most basic sense.

The negation of the rule of law is arbitrary rule, or rule by force of arms.

So the rule of law is a critical underpinning not just of democracy but of stable and secure societies, and for the promotion and protection of human rights. Even where gross violations of human rights are absent, uncertainty over the rule of law undermines people’s rights and their security in insidious ways.

But the rule of law is also, in our globalised age, an essential foundation of a modern economy and all its ramifications. While of course it’s true that economic growth depends on a range of factors including good policymaking, investments in human and physical infrastructure, and international conditions, nevertheless, as I argued above, all the evidence shows that absence of the rule of law is not compatible with a growing economy. To put this into some perspective, the breakdown in law and order in Solomon Islands in the early part of his decade destroyed up to a third of national income – to the extent that, according to the IMF, Solomon Islands’ economy needs to grow by an annual rate of around five percent over 20 years – to regain income levels enjoyed in 1995. Some of you may also be aware of estimates, put forward only last month by Dr Satish Chand of the Australian National University, that coups in Fiji have cost, on average, three years of economic growth.

These are not just statistics, they represent direct and real impacts on people’s lives – on their educational prospects, their health, their diets, their livelihoods and their security. They underline the importance of law to people’s live, to their rights and their security.

They also underline the importance of your role and your responsibility as lawyers. Of course, at a very basic level your work and your livelihood depend on the existence of the rule of law. The absence of the rule of law can undermine the sustainability or significance of the legal fraternity.

As lawyers, however, you are also leaders of your communities. Your role extends beyond the scope of your private practice or your work as a legal counsel in a government department. Your words and actions can have a strong influence both on the general community and on the decisions of politicians and leaders.

Therefore you have a special responsibility to promote and protect the rule of law at all times. To undermine or support the undermining of the rule of law for a particular cause will only serve to undermine that cause in the long run. In my experience, the legal profession in the Pacific has by and large - albeit with some glaring exceptions - a proud history of supporting the rule of law, often in the face of serious threats.

It’s also critical that you take time to explain to ordinary citizens the value of the rule of law. At times this might impose a personal cost on you but lawyers must not only work under the law, they must be seen to protect and uphold it. In this way lawyers can contribute towards building strong, stable and resilient societies. Certainly it’s that line of thinking that led the Australian High Commission to provide financial support to the holding of the recent Fiji Law Society annual convention.

Turning now more specifically to the subject of human rights, I think it’s possible to see the idea of universally applicable human rights, as it has developed during the last century, and particuarly since the Second World War, as an extension of the basic principle of equality before the law. The Universal Declaration of Human Rights was the first modern internationally accepted document that recognized human rights standards. It states in Article 1 that:

All human beings are born equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in the spirit of brotherhood.

The Universal Declaration remains a key foundation for, and a powerful inspiration to all those working to uphold and strengthen human rights.

During this conference you will be looking at relevant human rights conventions, some of which have been ratified by your respective countries, and how they are applied in the courts in the Pacific. Lawyers like yourselves are slowly but surely making submissions on human rights conventions and there is a growing Pacific human rights jurisprudence. This is certainly a positive sign for human rights promotion and protection in the Pacific.

Human rights will continue to occupy an important place in Australia’s aid program. The aid program reflects this by addressing the full range of political, civil, economic, social and cultural rights. At present, our aid program includes funding for a Human Rights Small Grants Scheme that funds activities by NGOs in the Asia-Pacific region; funding for the UN Office of the High Commissioner for Human Rights; and funding for the Asia Pacific Forum of National Human Rights Institutions, to advise governments and civil society on how to establish and strengthen national human rights institutions. Human rights are also supported through our bilateral, regional and NGO programs and are reinforced through good government initiatives including our support for RAMSI in Solomon Islands, assistance to the Law and Justice sector in Papua New Guinea, and our Community Justice Program here in Fiji – to name just a few examples.

The conference will also address questions of gender. I welcome this. Gender equality is integral to growth, governance and stability. While important gains have been made, gender ineqalities in areas such as health and education are still striking. For instance, two-thirds of the 800 million people in the world who lack basic literacy skills are female. Girls are twice as likely as boys to die from malnutrition and preventable diseases, and half a million women die each year from complications during pregnancy – 99 percent of them in developing countries.

But of course gender equality extends beyond improving female health and education. Australia’s commitment to gender equality means that women’s and girls’ views, needs, interests and rights shape the development agenda as much as men’s and boys’. In Australia’s view, gender equality includes access to economic resources, participation and leadership in decisionmaking, the human rights of women and efforts to eliminate discrimination against women. These are all areas that this conference can profitably consider.

The HIV/AIDS pandemic has destroyed the lives of millions and affected millions more around the world, and the Pacific is not immune. Current HIV/STI infection rates for the Pacific Islands indicate a possible exponential growth in HIV infection in the Pacific in the next 5-10 years.

The threat posed by HIV/AIDS has become the focus of increasingly high level attention internationally. Just three weeks ago in Sydney, the Australian Government and the Asia Pacific Business Coalition on AIDS jointly hosted the Third Ministerial Meeting on HIV/AIDS. Some of the countries represented here today were at that meeting. During the meeting Australia’s Foreign Minister, Alexander Downer, announced an increase in Australia’s funding in the area of HIV/AIDS from $600 million to $1 billion by 2010.

Consistent with this strong focus at the political level, I am pleased to note that this conference will discuss legal and human rights issues relating to HIV/AIDS, and in particular the impact of current laws and social attitudes on the spread of the disease.

I am aware that RRRT, in collaboration with UNDP Pacific Centre and UNAIDS had commissioned a review of HIV-related legislative provisions in 2006 for all the countries that are represented here. The results of this review, together with drafting instructions, were recently presented at the HIV High Level Consultation for Ministers for Health, Justice and Attorneys General from your countries, which was held in Auckland in April this year. The significance of this for you is that some, if not most of you, might be involved in the legal reform work in your respective countries if and when your leaders decide to change your provisions relating to HIV.

In conclusion, let me suggest that some of the information that will be shared in this conference may challenge your views about rights, gender and HIV. I think that’s a good thing. We are all the products of our different upbringing and backgrounds. We have beliefs, values, assumptions, perspectives, habits, ideas, likes and dislikes and there is nothing wrong with that. That said, it’s important that we remain open to the idea that we do all harbour assumptions, that we remain open to the possibility that some of our assumptions may be unfairly biased or stereotypical in nature, and that we remain open to having our assumptions tested and challenged from time to time.

I am pleased to note the many distinguished presenters who will be facilitating this workshop. RRRT is highly regarded regionally and internationally for its human rights advocacy work and training capacity in the region, so I’m confident you will all find this conference stimulating and enjoyable. Thanks to RRRT and its staff for organising and facilitating the conference.

I hope these opening remarks will contribute in some small way towards your discussions and I wish you all the best during the week.

Without further ado I declare that the Pacific Regional Lawyers Conference on Human Rights, International Conventions, Rule of Law and HIV and the Law Issues is now open.