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| Sunday, 13 March 2005 |
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Features |  |
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(continued from last week) by Dr. K.V.S.K. Nathan, Barrister/Arbitrator, Mestrino (PD), Italy
As the report presently stands, the IBA report conclusions for the most part are a reproduction of what any law student learnt in the LLM courses on constitutional law, jurisprudence and civil and human rights in Leeds, London and Kent Universities - and there are so many LLMMs and PhDs in law in Sri Lanka. Judicial bias There is no part of the world where the judiciary is, or can be, absolutely independent of the politics of the day and the sitting government. Judges are drawn from and serve the societies they live in, and are directly or indirectly appointed by the leadership of political parties. Lord Brennan QC, a signatory to the IBA Report, should know that. The Lord Chancellor, who presides over the House of Lords when it is constituted as the final appellate court in the UK, is appointed personally by the Prime Minister. Mr. Blair appointed his former head of the chambers to the position. All judges in England are appointed by the Lord Chancellor, who is himself a political appointee and who attends the inner Cabinet meetings at Downing Street during his term. The judges in the US Supreme Court are all nominees of the President, and some of them rarely, practised in the courts of law. US judges and chiefs of police at state, county and district levels campaign for office in elections as party nominees. I have myself cited examples of judicial bias in England in my articles "Barristers in England - Paragons of Virtue or Just Being Boys" and "Why Did You Not Get The Right Arbitrator" in the December 1999 and July 2000 issues of the International Arbitration Report. The first involved an English Commercial Court decision by Mr. Justice Rix in Laker Airways v FLS Aeropace Ltd and Burnton et al. to the effect that a party nomination of a barrister as an arbitrator in an arbitration in which the counsel for the party was a fellow barrister in the same chambers was perfectly legitimate. Imagine what would have happened if two Sri Lankan attorneys-at-law sharing the same address appeared as counsel and arbitrator in the same dispute in Sri Lanka. That would have been hailed as another example of corruption. Laker Airways challenged the appointment of the party nominated arbitrator with no success. The assumption in government circles is that English barristers and judges are paragons of virtue - which they emphatically are not. Arbitral tribunal In AT & T Corp v Saudi Cable Co the English Court of Appeal upheld an award by an arbitral tribunal presided over by a Canadian QC who was a director of, and held shares in, a company which had an interest in the outcome of the srbitration. I wondered in my article if the court would have decided otherwise had the arbitrator been from a developing county and/or is not a QC. What the above means is that judicial bias, conscious or not, is not peculiar to Sri Lanka, and the English court judges go further than their Sri Lankan counterparts in displaying bias even in commercial cases where the reputation of their fellow barristers or their institutions is impugned. I have suggested elsewhere that non-academic titles should not be used in international arbitrations or even in domestic courts. The market will decide on a day to day basis as to who is good and who is not. Titles such as QC merely increase litigation costs and intimidate witnesses and judges; and there is no guarantee that a QC sustains his or her quality for ever. Besides, those who confer these titles are often motivated by irrelevant considerations. In Italy, a simple civil case can go on for some 10 years or more in the courts of law before a judgment is meted out. In my opinion, the power and influence of the Mafia can be partly attributed to the failure of the courts to ensure orderly conduct in the business and commercial world. Informal means of resolution of conflicts by force or otherwise are bound to crop up when the judicial systems are not efficient. Arbitration is itself a product of the inability of a judicial system by the very nature of control by the government to meet the special needs of particular sectors, especially the business sector. Sri Lanka's 1978 constitution No country is perfect, least of all, Sri Lanka. Its 1978 constitution is an unwieldy, divisive instrument which was rushed through a Westminster-style parliament by a party that had absolute power because of its large majority. Successive governments have gradually propelled the country into a society in which people do not trust each other and do not respect their own institutions including the judiciary - so much so that the people do not accept anything or any body as credible unless it or he or she emanates from a European country, and the people have surrendered their self respect and dignity. Regretfully, the government has established institutions to encourage people to leave the country in massive numbers, especially women, with potentially grave consequences to the social and moral fabric of Sri Lankan life, besides endangering the economy in the long run. World Bank Bad but honestly rendered advice from experts from the World Bank, bilateral lending and credit institutions, official and non-official aid agencies and foreign diplomats is freely accepted by those in power, despite the existence of a large local professional and skilled manpower base and its opposition to partisan Government policies. The society has developed into divisive self destructive one, and continues to be so despite the lessons of the past. There is no effort to negotiate in good faith and reach out to each other at a personal level, except stiffly through Norwegian and other foreign diplomats. The availability of these intermediaries merely keep peoples apart. The division of the country becomes absolute. There is an unhealthy tendency to look for glances of approval and honours from foreign commercial, diplomatic and political interests. Foreign exchange earned by hardworking Sri Lankan maids in foreign countries is squandered by the Government on trips abroad and a lavish lifestyle, while the World Bank quite happily encourages this dissolute way of public life by funding not only capital but also maintenance expenditures including local project staff salaries and emoluments to buy their support for the loans and credits. Judicial and constitutional reforms Besides Sri Lanka, many developed countries are considering radical judicial and constitutional reforms. The English are currently debating the reorganisation of the legal profession and the system of appointments to the bench, besides contemplating constitutional reforms to meet the demands of the Scots and the Welsh. The Italian Lega Nord is pressing for the creation of a federal constitution for their country with local autonomy for the northern regions, and the government has recently introduced some controversial reforms to the judiciary. But life goes on and their economies are growing from strength to strength, while the Sri Lankan economy is still weak and its capacity to sustain recent growth is in question. Priority in Sri Lanka What it all means is that the priority in Sri Lanka is not constitutional and judicial reforms per se but a change in the mentality of those entrusted with the task of leading the country and making appointments to the law enforcement agencies and the judiciary. In my opinion, the contribution of the IBA report lies in its reference to the training of judges rather than its detailed proposals for the appointment of judges and their emoluments. The point to remember is that the existence of laws themselves is not a guarantee that politicians, bureaucrats, police and the judges will conduct themselves according to the letter of the law, and laws are not perfect anyway. What binds people together is a collective determination that certain things are simply not done in a civilised society, namely, interfering with the independence of the bureaucrats, the police and the judges, and violating basic civil and human rights. Judicial independence Therefore, in my opinion, the focus of training in judicial independence and conducts should not be confined only to judges, as the IBA report and World Bank judicial reform project envisage, but extended also to politicians, bureaucrats, and police and security organisations because they all perform quasi judicial functions. In my article on commercial law reform in the Russian Federation published in the March 2000 issue of Amicus Curice, I write as follows: "Much of judicial independence is affected by the political culture, politicians themselves and the bureaucrats, rather than any inherent lack of intellectual capacity on the part of lawyers and judges to understand and put into practice Western democratic concept." This is also true of the situation in Sri Lanka I fully agree with the IBA report's rejection of the application of the doctrine of necessity regarded by some-including the norwegian mediators and some government negotiators - as a legitimate device to effect needed constitutional reforms in Sri Lanka provided, however, that the law recognises certain fundamental obligations relating to civil and human rights as binding on the state. The Norwegians have introduced a dangerous doctrine into the country. Once you subscribe to the doctrine of necessity, the country puts itself on a slippery slope leading to anarchy. Sri Lanka will be confronted with successive coups on grounds of necessity, as in many parts of Africa and Pakistan. The consequences to economic development are incalculable. The rule of law is an absolute and should not be compromised at any cost. However, rule of law does not simply mean that no one is above the law and everyone including the politicians and legal and judicial officers themselves must follow the law. In the Sri Lankan context, everyone without exception including the President and Prime Minister must respect and accept the judgements made in a judicial tribunal on an equal basis - even those made by imperfect judges. It must be understood that civilian life cannot halt while the authorities debate and introduce needed legal and judicial reforms, and there is no perfect solution anywhere in the world. People must discipline themselves to comply with the orders, decisions and judgments of judicial tribunals. Instances of corruption and inefficiency The Marga Institute report reads like an opinion poll, and discloses concerns which should be addressed by the government and players in the legal and judicial system in the country. It is worthy of notice that instances of bribes and corruption in the ordinary sense of the word, meaning the exchange of promises of definable material benefits, have not been levied against or attributed in any way to the judges, although other players such as court officers have been implicated. Bureaucrats This takes place in the developed countries too at lower levels of the bureaucracy and judicial administration. Italy is notorious for it. Even at higher levels in developed countries such as the USA and England, bureaucrats cannot be relied upon, except to pursue the political interests of those who appointed them. We should certainly not condone such conduct in Sri Lanka but it is important to draw a distinction between purely administrative officials and those who exercise judicial functions such as the judges and law enforcement officers and senior members of the bureaucracy, who should be absolutely impartial and independent in their dealings with the public. What is missing and relevant for our purpose is the evaluation of performance of judges at different levels of the judicial process, especially at the highest level, namely, the Supreme Court. I guess from the report that inefficiency is increasingly evident as you go down the ranks of the judges. The report is not a sufficient basis for the quantum leap the authors have made in order to make specific recommendations for legal and judicial reforms. In particular, I see it as a regressive step to divide the legal profession into two branches as in England although, by and large, in England the dividing lines between the solicitors and barristers are increasingly blurry. In no other country in the world - including the common law countries such as the US, Australia and New Zealand - is the profession divided. The proposed division is a relic of the class-ridden society England still is to a significant degree. Political leadership In the end, however, blame primarily lies not at the doors of the institutions and systems in place but at the political leadership in the country. They set the style, tone and pace of justice and pride in the country. The laws and administration and enforcement of the laws themselves do not guarantee a secure, safe and proud democratic society without the adoption of conventions of proper and decent behaviour and conduct in public life. They have the force of law and should bind us all, even if not embodied in laws passed by parliament. That is the difference between Sri Lanka and the developed countries - the conventions as distinct from law that govern those countries and bind the societies there - and not the laws and legal and judicial institutions as such. They are as imperfect as in Sri Lanka. The trouble with both the IBS and Margot reports is that the recommendations are so outrageously theoretical that there is no practical way to implement them. The same can be said of thousands of reports made by World Bank missions, including legal and judicial reform missions in pursuit of their theoretical objective. Simply put, a respect for the law and judicial institutions and decisions by judicial and quasi judicial bodies can be a start, provided as well as judicial officers and the police and bureaucrats that certain rights of the people are inviolable, and they themselves observe these rights to the letter even at personal cost. US President Harry Truman (1945-1953) when he was accused of appointing a friend to the Supreme Court, remarked that: "...packing the Supreme Court simply can't be done. I have tried it, and it won't work. Whenever, you put a man on the Supreme Court, he ceases to be your friend." Sri Lankan judges may well take their cue from President Truman's telling observation, and its meaning and significance. The meaning is that a judge does not identify himself or herself with the political authority that made the appointment directly or indirectly via appointing commissions, and the significance is that he or she should be absolutely independent in the exercise of his or her duties, and correct in his or her public and private conduct. Concluded Courtesy: Amicus Curiae |
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