The Rule of Law: A Comparative Perspective : Festschrift for Anton MJ COORAY on the Occasion of his Sixty-fifth Birthday 9789629375096, 9789629372255

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The Rule of Law: A Comparative Perspective Festschrift for Anton MJ COORAY on the Occasion of his Sixty-fifth Birthday

EDITED BY

Guiguo WANG and Fan YANG

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©2013 City University of Hong Kong All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, Internet or otherwise, without the prior written permission of the City University of Hong Kong Press. ISBN: 978-962-937-225-5 Published by City University of Hong Kong Press Tat Chee Avenue Kowloon, Hong Kong Website: www.cityu.edu.hk/upress E-mail: [email protected] Printed in Hong Kong

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Anton MJ COORAY

Professor COORAY graduated in Law with honours from University of Colombo, Sri Lanka, and passed the Bar Examination with First Class honours. He obtained his PhD (London) and was awarded a second PhD by University of Colombo for his work on the Sri Lankan constitution. He has been a Commonwealth Scholar, Commonwealth Academic Fellow and a British Council Academic Visitor. Professor COORAY during his tenure at University of Colombo was Head of Law and Dean of Law. He joined City University of Hong Kong in 1990 as a senior lecturer, and was promoted in quick succession to Associate Professor and Professor. He was visiting professor at the University of Aix Marseille, France, School of Oriental and African Studies, University of London, and University of Hawaii. Professor COORAY is a public lawyer by training and went on to specialise in land-use planning law. For many years he has trained government counsel in the Department of Justice and planning officers in the Planning Department, in administrative law and planning law. He was a member of the Town Planning Board From 1996 to 2004 and was the Deputy Chairman of the Town Planning Appeal Panel/Chairman of the Town Planning Board from 1995 to 2012. He was a World Bank consultant to the Government of Sri Lanka on legal education and judicial reform and has participated in judicial training programmes in England at the invitation of the Judicial Studies Board of England and Wales.

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The Rule of Law: A Comparative Perspective

He is the editor in chief of Asia Pacific Law Review first published in 1992. Under his editorship the journal has became well respected and internationally recognised. In 2007 the journal became the first ever Asia based law journal to be listed in the highly regarded Social Sciences Citation Index. The journal is also indexed/abstracted in SCOPUS, LegalTrac, Social Sciences Citation Network, CSA Worldwide Political Science Abstracts, Index to Legal Periodicals and Books, Sociological Abstracts and Sweet & Maxwell LJI Service. The journal is globally available on Lexis.com, HeinOnline and ProQuest. He is an editor of the Journal of Commonwealth Law and Education, an editorial board member of the International Journal of Law and Management and an editorial advisor to Sri Lanka Journal of International Law. Since 1992 he has organised many international conferences, among them conferences in collaboration with Yale Law School, Cambridge University, Hebrew University of Jerusalem, Queen Mary London, and the Commonwealth Legal Education Association. His writings have been published in England, Scotland, Netherlands, Belgium, Germany, Austria, USA, Canada, Sri Lanka, India, Hong Kong and Australia. In his foreword to The Judicial Role in Sri Lanka under the Constitutions of Ceylon/ Sri Lanka (1983) Professor O. Hood PHILIPS, QC, an all-time authority on English constitutional law says: “Dr COORAY has based his work on first-hand sources, many of them hardly available outside London. Showing himself equally skilled in historical narrative and critical analysis, he follows an objective, non-polemical approach, while leaving no doubt in our mind of his firm belief in the paramount importance of an independent judiciary”.

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FOREWORD

There is no greater or more fitting a tribute that can be paid to a lawyer — indeed anyone — than to have one’s peers write chapters of a work dedicated to the rule of law. It is touching that so many have contributed to this Festschrift in honour of Professor Anton Cooray. Whatever specialisations or interests we have in the very many facets of the law, it is the rule of law that binds all legal disciplines into a rational whole. For it has always been the law’s justification, its only justification, to serve the community in which it exists. This has been the effect of all that the great lawyers, philosophers and legal systems have tried to communicate to us. From Hammurabi to the common law through the Napoleonic Code, from Plato to Ronald DWORKIN, from John MARSHALL to Lord REID, the list is a long and impressive one. The depth of learning displayed in the present volume should be closely appreciated by student and lawyer alike, not least for the comparative presentations into this core concept involving as they do trans-national and trans-cultural approaches. Though each system of law may have different approaches, the theme of the rule of law is the same. The public interest in any community lies in the recognition that there are principles and rights that are fundamental to the existence of a decent and fair society. And that these rights and principles are to be observed by everyone and every entity. Enforcement by the courts (the concept of the independence of the judiciary) is naturally an important aspect but there must also be recognition of the rule of law, both in spirit as well as in content, by governments and legislatures.

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Anton COORAY has long recognised and advocated what I have tried to articulate in this short Foreword. He fully understands the rule of law and respects the dignity of it. And in my view, that makes him the complete lawyer.

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Geoffrey MA Chief Justice Chief Justice’s Chambers 29 August 2013

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EDITORS

Professor Guiguo WANG, Diploma U of Foreign Studies Beijing, LLM Columbia, JSD Yale, Titular Member of the International Academy of Comparative Law, Lecturer of The Hague Academy of International Law Professor WANG is Chair Professor of Chinese and Comparative Law at the City University of Hong Kong. He was Dean of the School of Law of the City University of Hong Kong between August 2007 and July 2013. He is Chairman of the Hong Kong Committee and a Titular Member of the International Academy of Comparative Law; Chairman of the Hong Kong WTO Research Institute; and Honorary Advisor to the Ombudsman of Hong Kong. He is also a Distinguished Professor of Law at Hunan Normal University School of Law, Changsha, China; Vice President of the Chinese Society of International Economic Law; and Advisor to the Shenzhen Municipality on WTO affairs. He is an arbitrator of the China International Economic and Trade Arbitration Commission (CIETAC), the Beijing Arbitration Commission, the Hong Kong International Arbitration Centre, the Panel of Arbitrators of Korean Commercial Arbitration Board and the Chinese Arbitration Association of Taipei. Professor WANG holds a JSD from Yale Law School and a LLM from Columbia Law School. He was the first Chinese recipient of the United Nations Legal Affairs Office and the United Nations Institute for Training and Research Fellowship which enabled him to participate in the seminars offered by the International Court of Justice and to study at The Hague Academy of International Law, the United Nations and the World Bank. Professor WANG was also the first person from the mainland of China to obtain

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the JSD degree from Yale Law School since 1949. In the summer of 2010, Professor WANG served as a special lecturer at The Hague Academy of International Law and gave a series of lectures on ‘Radiating Impact of WTO on Its Members’ Legal System: The Chinese Perspective’.

Dr. Fan YANG LLB, LLM, PhD, FCIArb, FHEA, CEDR Accredited Mediator, Barrister (England & Wales, non-practising) Dr. YANG was awarded her PhD by Queen Mary University of London. She was called to the Bar of England and Wales in 2005. She is a Fellow of the Chartered Institute of Arbitrators (FCIArb), a Fellow of the Higher Education Academy (FHEA), and is currently the LLMArbDR Programme Leader and an Assistant Professor at the School of Law of the City University of Hong Kong (CityU). Before joining CityU, Dr. YANG was an Associate at Skadden, Arps, Slate, Meagher & Flom (UK) LLP. Dr. YANG also worked as Legal Assistant to Neil Kaplan CBE QC SBS. She is an arbitrator of the Hong Kong International Arbitration Centre (HKIAC) and a CEDR Accredited Mediator. Dr. YANG’s teaching and research interests include international and Chinese comparative dispute resolution, arbitration, mediation, multijurisdiction litigation, contract law and commercial law.

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LIST OF CONTRIBUTORS (in alphabetical order)

Neil H. ANDREWS Fellow of Clare College, Professor, Faculty of Law, University of Cambridge, United Kingdom

Surya DEVA Associate Professor, School of Law, City University of Hong Kong, Hong Kong SAR

Noel DIAS Rev. Dr. Noel DIAS, Consultant, Faculty of Law, University of Colombo, Sri Lanka

Roger GAMBLE Lecturer, Department of Business Law and Taxation, Monash University, Australia

Wenwei GUAN Assistant Professor, School of Law, City University of Hong Kong, Hong Kong SAR

Xin HE Professor, School of Law, City University of Hong Kong, Hong Kong SAR

Hoong Phun LEE Professor, Faculty of Law, Monash University, Australia

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Feng LIN Professor, School of Law, City University of Hong Kong, Hong Kong SAR

Fozia Nazir LONE Assistant Professor, School of Law, City University of Hong Kong, Hong Kong SAR

Walter H. RECHBERGER Professor, School of Law, University of Vienna, Austria

Rajesh SHARMA Assistant Professor, School of Law, City University of Hong Kong, Hong Kong SAR

Shimon SHETREET Professor, Faculty of Law, The Hebrew University of Jerusalem, Israel

Bea VERSCHRAEGEN Professor, School of Law, University of Vienna, Austria

Lijuan XING Assistant Professor, School of Law, City University of Hong Kong, Hong Kong SAR

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CONTENTS IN BRIEF

1.

Introduction from the Editors Guiguo WANG and Fan YANG

2. 3. 4. 5. 6.

7. 8.



1

The Rule of Law Sans Frontières: Cross-Border Aspects of the Principle of Legality Neil ANDREWS



9

The Rule of Law in India: The Chasm between Paper and Practice Surya DEVA

27

The Decalogue and Sri Lankan Criminal Law: Definition of Offences as a Prerequisite for the Rule of Law Noel DIAS and Roger GAMBLE The Rule of Law in the WTO: The Hope and the Disappointment of WTO Decision Making Wenwei GUAN In the Name of Harmony: The Erasure of Domestic Violence in China’s Judicial Mediation Xin HE and Kwai Hang NG

47

85

107

The Islamisation Phenomenon and the Rule of Law in Malaysia Hoong Phun LEE

139

Rule of Law under the Communist Party of China: A Study of Local People’s Congress Elections Feng LIN

159

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  9. Rule of Law: A Tort Law Perspective Fozia Nazir LONE 10. The Rule of Law in Austria: The Constitutional Framework for Austrian Civil Procedure Walter RECHBERGER 11. Rule of Law and Religious Faith and Beliefs: Dilemma for Indian Courts Rajesh SHARMA 12. Legislative Reversals of Judicial Decisions Shimon SHETREET

183

197

213 239

13. Implementation and Application of the 1980 Hague Abduction Convention Bea VERSCHRAEGEN

265

14. The Rotterdam Rules and the International Rule of Law Lijuan XING

299

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CONTENTS IN DETAIL

Foreword by Chief Justice Geoffrey MA 1.

Introduction by Guiguo WANG and Fan YANG

2.

The Rule of Law Sans Frontières: Cross-Border Aspects of the Principle of Legality by Neil H. ANDREWS (1) Introduction

para 2.01

(2) A Foreign Court Improperly Invalidates a Foreign Judgment Already Recognised by the English Court

para 2.04

(3) Should the English Courts Simply Follow a Foreign Court’s Declaration that Another Foreign State’s Court Lacked Judicial Independence?

para 2.09

(4) An Enforcing Court’s Responsibility to Double-Check a Foreign Arbitral Tribunal’s Determination Concerning the True Or Legitimate Parties to an Arbitration Agreement

para 2.12

(5) Concluding Remarks on the Cross-Border Vitality of ‘The Rule of Law’ a. Transnational Finality of Judgment b. Transnational Determinations Whether a Foreign Court Lacks Judicial Independence c. Transnational Determination Concerning the Legitimate Parties to Arbitration Awards

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para 2.24 para 2.25

para 2.26

para 2.27

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3.

The Rule of Law in India: The Chasm between Paper and Practice by Surya DEVA (1) Backdrop

para 3.01

(2) Keeping Government Powers Under Check

para 3.06

(3) Equality Guarantee and the Protection of Human Rights

para 3.14

(4) Judicial Review by an Independent Judiciary para 3.22 (5) Conclusion 4.

para 3.26

The Decalogue and Sri Lankan Criminal Law: Definition of Offences as a Prerequisite for the Rule of Law by Noel DIAS and Roger GAMBLE (1) Introduction

para 4.01

(2) The Decalogue a. Introduction to the Decalogue b. Moral Responsibility and Criminal Liability in Catholic Moral Theology c. Penal Sanctions in General d. Penal Sanctions in the Catholic Church e. Defences in Catholic Penal Law

para 4.04 para 4.04

(3) Sri Lankan Criminal Law a. A Brief History of Sri Lanka Criminal Law b. Principles of Criminal Liability c. Actus Reus d. Mens Rea e. Punishments in Sri Lankan Criminal Law f. Defences in Sri Lankan Law

para 4.23

(4) Love of God: First, Second and Third Commandments a. First Commandment: Catholic Teaching

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para 4.08 para 4.12 para 4.17 para 4.20

para 4.23 para 4.26 para 4.27 para 4.30 para 4.32 para 4.34 para 4.38 para 4.38

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Contents in Detail

b. c. d.

Second Commandment: Catholic Perspective The Third Commandment: Catholic Perspective Sri Lankan Criminal Law: First, Second and Third Commandments

xv

para 4.41 para 4.45

para 4.47

(5) Love of Neighbour: Fourth Commandment para 4.49 a. Fourth Commandment: Catholic Perspective para 4.49 b. Sri Lankan Criminal Law and the Fourth Commandment para 4.53 (6) Sixth and Ninth Commandments a. Catholic Teaching on the Sixth and Ninth Commandments b. Sri Lankan Criminal Law: Sixth and Ninth Commandments

para 4.55

(7) Fifth Commandment a. Prohibition on Killing according to Catholic Teaching b. Sri Lankan Law Pertaining to Killing c. Intention to Murder d. Intention to Cause Grievous Bodily Injury e. Knowledge that Death may may Ensue f. Defense against Murder g. Sudden and Grave Provocation h. Right of Private Denfence i. Abortion in Sri Lankan Law

para 4.62

(8) Seventh and Tenth Commandments a. Theft in Catholic Teaching b. Theft in Sri Lankan Criminal Law c. Theft under the Penal Code

para 4.90 para 4.90 para 4.95 para 4.96

(9) Comparison Between the Decalogue and Sri Lankan Criminal Law

para 4.103

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para 4.55 para 4.58

para 4.62 para 4.71 para 4.73 para 4.74 para 4.77 para 4.79 para 4.80 para 4.82 para 4.85

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a. b. c. d. e. f.

g. h. i.

Comparison based on General Consideration Comparison based on History Comparison based on Principles of Criminality Punishments: Comparative Study Defences: Comparative Perspective Comparison based on First, Second, Third, Fourth, Sixth and Ninth Commandments. First, Second and Third Commandments Fourth Commandment Sixth and Ninth Commandments Comparison based on the Fifth, Seventh and Ninth Commandments and Prohibition on Killing

(10) Conclusion 5.

para 4.103 para 4.104 para 4.105 para 4.107 para 4.110

para 4.112 para 4.114 para 4.116

para 4.119 para 4.124

The Rule of Law in the WTO: The Hope and the Disappointment of WTO Decision Making by Wenwei GUAN (1) Introduction: WTO and the Rule of Law (2) The Consensus Rule and Decision Making in the WTO a. Decision Making by Consensus and the Rules-based WTO Regime b. The Contractarian Foundation of Consensus Decision Making (3) Practical and Theoretical Issues and Critiques of the Consensus Principle a. Practical Issues with the Consensus Principle and the Rule of Law b. Theoretical Issues with the Consensus Principle and the Rule of Law (4) Conclusion: Hope and Disappointment

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para 5.01 para 5.04 para 5.04 para 5.10 para 5.16 para 5.16 para 5.22 para 5.29

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Contents in Detail

6.

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In the Name of Harmony: The Erasure of Domestic Violence in China’s Judicial Mediation by Xin HE and Kwai Hang NG (1) Introduction

para 6.01

(2) Domestic Violence Laws in China

para 6.04

(3) Methodology

para 6.10

(4) Judicial Mediation

para 6.15

(5) Evidence: The Focus of Court Investigation para 6.18

7.

(6) Solution: The Focus of Court Mediation

para 6.29

(7) Conclusion and Implications

para 6.37

The Islamisation Phenomenon and the Rule of Law in Malaysia by Hoong Phun LEE (1) Introduction

para 7.01

(2) The Evolution of the Malayan/ Malaysian Constitution para 7.03 a. General Framework of the Constitution para 7.06 b. Some Key Provisions para 7.10 c. ‘Religion of the Federation’ para 7.15

8.

(3) The Growing ‘Islamisation’ Phenomenon a. Moral Policing b. The Prohibition of Yoga Fatwa c. Destruction of Hindu Temples d. The Use of ‘Allah’ and the Bible e. Constraints on Religious Freedom of Non-Muslims f. Conversion and Apostasy

para 7.17 para 7.19 para 7.21 para 7.22 para 7.23

(4) Malaysia—What Does the Future Hold?

para 7.32

para 7.24 para 7.25

Rule of Law under the Communist Party of China— A Study of Local People’s Congress Elections by Feng LIN (1) Introduction

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para 8.01

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(2) The Concept of Constitutionalism and the Chinese Constitution

para 8.03

(3) Electoral System of the People’s Congresses and Its Evolution

para 8.06

(4) Policy Reasons behind Electoral Reforms

para 8.15

(5) Study of Election Practice

para 8.21

(6) Conclusion

para 8.25

  9. Rule of Law: A Tort Law Perspective by Fozia Nazir LONE (1) Introduction

para 9.01

(2) The Alcock Decision: Control Mechanism for Psychiatric Illness (Secondary Victim)

para 9.06

(3) Closeness of Ties

para 9.11

(4) The Proximity Test

para 9.14

(5) The Means by which the Shock is Caused

para 9.16

(6) Conclusion

para 9.18

10. The Rule of Law in Austria— The Constitutional Framework for Austrian Civil Procedure by Walter H. RECHBERGER (1) Introduction

para 10.01

(2) Rule of Law in the European Union

para 10.03

(3) Rule of Law in Austria— Das Rechtsstaatsprinzip

para 10.04

(4) Jurisdiction Shall Be Based on Law a. Basic Principle b. Development of the Law by Judicial Decisions c. Conclusion

para 10.07 para 10.08

(5) Courts Shall be Independent a. Independence of State Court Judges b. Impartiality of a State Court Judge

para 10.19 para 10.20 para 10.26

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para 10.12 para 10.16

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Contents in Detail

c. d.

Independence and Impartiality in Austrian Civil Procedure Conclusion

xix

para 10.27 para 10.28

(6) Other Constitutional Principles

para 10.29

(7) Conclusion

para 10.34

11. Rule of Law and Religious Faith and Beliefs: Dilemma for Indian Courts by Rajesh SHARMA (1) Introduction

para 11.01

(2) Faith and Belief and the Constitution

para 11.08

(3) Determination of Faith and Belief: Ayodhya Case

para 11.15

(4) The Dilemma of Courts in Dealing with Faith and Belief

para 11.27

(5) Conclusion

para 11.31

12. Legislative Reversals of Judicial Decisions by Shimon SHETREET (1) Introduction

para 12.01

(2) Conceptual Analysis of the Independence of the Judicial Process

para 12.07

(3) The Duty of The Executive to Respect the Post-Judgment Independence of the Courts para 12.16 (4) The Practice of Legislative Reversals of Judicial Decisions

para 12.28

(5) The Academic Discourse on Legislative Reversals of Judicial Decisions: Distinguishing between Judgments Correcting Errors of Law and Judicial Precedents Establishing Innovative Principles of Law para 12.31 (6) Illustrations of Legislative Reversals of Judicial Decisions

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para 12.33

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a. b. c. d.

Canada: The McKie Case UK: The Burma Oil Case India: The Shah Bano Case How Should We Judge Retrospective Application of Legislative Reversals of Judicial Decisions Applying to a Specific Decision?

para 12.34 para 12.35 para 12.38

para 12.45

(7) Reversal of Judicial Decisions by Ordinary Legislation and by Constitutional Amendments

para 12.47

(8) Conclusion

para 12.58

13. Implementation and Application of the 1980 Hague Abduction Convention by Bea VERSCHRAEGEN (1) Introduction

para 13.01

(2) Interaction of Different Legal Sources

para 13.14

(3) Application of the Convention

para 13.17

(4) Implementation of the Convention in Austria a. General Remarks b. The Domestic Law Implementing the Convention c. Chapter 7 of the Law on JNCM

para 13.32 para 13.32 para 13.33 para 13.34

(5) Austrian Case Law

para 13.46

(6) Summary

para 13.58

14. The Rotterdam Rules and the International Rule of Law by Lijuan XING (1) Introduction: The Rotterdam Rules and its Interpretation

para 14.01

(2) The International Rule of Law and Treaty Interpretation

para 14.02

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Contents in Detail

xxi

(3) Interpreting the ‘International Character’ of the Rotterdam Rules para 14.09 a. The Relevance of the Vienna Convention on the Law of Treaties (1969) para 14.10 b. Interpreting the Term ‘International Character’ by Applying the Vienna Convention on the Law of Treaties (1969) para 14.11 (4) The ‘International Character’ of the Rotterdam Rules and the International Rule of Law a. The Rotterdam Rules as a Treaty Governed by International Law b. The Rotterdam Rules as Part of the International Legal System c. Respect for ‘Sovereign freedom’ by the Rotterdam Rules d. The Rotterdam Rules prevails over Regional and Domestic Laws of its Contracting States (5) Concluding Remarks

para 14.20 para 14.21 para 14.26 para 14.31

para 14.38 para 14.42

Index

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THE RULE OF LAW: A COMPARATIVE PERSPECTIVE

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Introduction from the Editors

1.01 At the end of June 2013, Professor Anton COORAY retired from his position at the City University of Hong Kong (‘CityU’) School of Law after almost twenty-five years of loyal and productive service. During that time, he made a very substantial contribution to the success of the School, as well as to the study and practice of law. For younger members of staff and students, his retirement may have come as a surprise: his enthusiasm and energy belie his sixty-five years, a milestone that he reached on 10 April 2013. He joined the School in 1989, just two years after its foundation. Before joining, he had served as Head of Law and Dean of Law at the University of Colombo. He was quickly promoted from his initial role as a Senior Lecturer to Associate Professor. He later became a full Professor and served as Associate Dean of the School of Law for the last six years of his tenure. 1.02 Anton’s tremendous contribution to the School of Law cannot be understated. He has taught courses on subjects ranging from private law to public law and from domestic law to international law. His teaching of such a wide variety of subjects is testament to his flexibility and his comprehensive knowledge. He participated in the development of all of the existing programmes of the School, served on almost every School committee, and represented the School on many CityU committees. In addition, Anton served on the Hong Kong Government’s Standing Committee on Legal Education and helped to

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The Rule of Law: A Comparative Perspective

provide training on administrative law and planning law to both government counsels in the Department of Justice and planning officers in the Planning Department. He was a member of the Hong Kong Town Planning Board from 1996 to 2004 and was the Deputy Chairman of the Town Planning Appeal Panel and Chairman of the Town Planning Board from 1995 to 2012, a position that is rarely awarded to a scholar. His contributions to legal education in Hong Kong, and the promotion of the School of Law and CityU are both invaluable and impossible to overstate. 1.03 Of course, Anton’s contributions have not been confined to CityU. He was visiting professor at the University of Aix-Marseille, France; the School of Oriental and African Studies at the University of London; and the University of Hawaii. Since 1992, he has organised many international conferences, among them conferences in collaboration with Yale Law School; Cambridge University; Hebrew University of Jerusalem; Queen Mary, University of London; and the Commonwealth Legal Education Association. He has published widely on issues affecting many jurisdictions. As one of our contributors, Professor Neil ANDREWS, commented in his chapter, Anton’s impressive scholarship and academic leadership embrace public and private law matters, substantive and procedural issues, domestic and international fields. It is not surprising that he has won a wide collection of friends and admirers around the world. His work as the Editor-In-Chief of Asia Pacific Law Review, first published in 1992, is particularly widely appreciated. Under his remarkable editorship, the journal is now well respected and internationally recognised, as evidenced by its inclusion in the highly regarded Social Sciences Citation Index in 2007, the first

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Introduction from the Editors

3

Asian law journal to be so recognised. The journal is now also indexed/abstracted in SCOPUS, LegalTrac, the Social Sciences Citation Network, the CSA Worldwide Political Science Abstracts, the Index to Legal Periodicals and Books, Sociological Abstracts, and Sweet & Maxwell’s LJI Service. It is globally available on Lexis.com, HeinOnline and ProQuest. 1.04 Anton is a very patient and caring person, with a natural calmness that may be mistaken for quietness at first meeting. When he first joined the School, his new colleagues found that his honesty and warm-heartedness shone and were reflected in his smiling face. His office door was always open to both colleagues and students. He has never turned away anyone in need of assistance and has given much of his valuable time to others, helping them to realise their academic and professional goals. This has not changed at all over his twenty-four years of service, regardless of his seniority or the administrative burdens that he carried. No wonder people — long-serving colleagues, short-term visitors, and students — recognise Anton’s generosity towards others and his remarkable energy. Anton may not be the most strongly built of men in terms of physique, but he is a giant in terms of his character. 1.05 During his Associate Deanship, Anton was officially in charge of supervising half of the programmes that the School of Law offers. In fact, he performed rather more functions and was a great help to colleagues at all levels. We have all been able to rely on his good nature, his shrewd judgment and his support. We will miss him sorely at a personal and a professional level. He will also be greatly missed by the student body. Whenever there is a

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student concern, the first thing in his mind is the interests of students and how they can be best served in a manner in accordance with the School of Law’s principles. Such obvious kindness and passion have been widely recognised and appreciated and have enabled him to win the trust and confidence of students. 1.06 This Festschrift has attracted contributions from not only Anton’s colleagues, but also a number of world-renowned scholars, who wished to convey through their contributions their enormous respect for his scholarship, leadership and gentlemanly bearing. We have chosen ‘The Rule of Law: a Comparative Perspective’ as its theme because it is one of the most important topics in the area of constitutional and administrative law, about which Anton has researched and written extensively. We have not sought to settle the debates about the definition or the exact meaning or ambit of the rule of law, but have left it in the hands of our contributors to explain how they understand the concept and how it is relevant to their respective areas of expertise. Although the study of the ‘rule of law’ encompasses a very long list of fundamental legal principles or precepts, the thirteen chapters contained in this Festchrift fall into three main spheres: the rule of law from the perspectives of (1) international law, (2) domestic law and (3) law and religion. 1.07 With regard to international law perspectives, Professor Neil ANDREWS has examined three recent English decisions in the field of the cross-border recognition of foreign judgments and foreign arbitral awards. He demonstrates how these cases expressly or implicitly turn on conceptions of ‘the rule of law’ and the flexibility and strength of the principle of legality. Professor Bea

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Introduction from the Editors

5

VERSCHRAEGEN has written on the implementation and application of the 1980 Hague Abduction Convention in the European Union. In his chapter, Professor Shimon SHETREET discusses the legislative reversals of judicial decisions in the context of judicial independence in a number of jurisdictions. Dr. Wenwei GUAN considers the rule of law in the context of the WTO’s decisionmaking process and Dr. Lijuan XING examines the interpretation of the Rotterdam Rules from the perspective of the international rule of law. These five chapters demonstrate that the principles and precepts of the rule of law have international or cross-border dimensions. The challenge of legislative reversals of judicial decisions to the principle of judicial independence, for example, is, unfortunately, a widespread phenomenon in Professor Shimon SHETREET’s view. Observing the rule of law remains fundamental in the implementation and application of international conventions, such as the 1980 Hague Abduction Convention, as well as in the decision making process of international organisations, such as the WTO. As also shown in interpreting international conventions, such as the Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (the Rotterdam Rules), national courts should bear in mind the international character of international conventions and the need to observe and promote international rules of law as reflected in those international conventions. 1.08 As to domestic law perspectives, Professor Walter RECHBERGER has written on the rule of law in Austria, examining the constitutional framework for Austrian civil procedure. Professor Feng LIN has written on the rule of law under the Communist Party of China, presenting a study of local People’s Congress elections. Professor Xin

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HE and Kwai Hang NG have discussed the use of judicial mediation in domestic disputes involving violence in China. Dr. Surya DEVA has written on the rule of law in India, analyzing the chasm between paper and practice, whilst Dr. Fozia LONE has reviewed the intersection of tort law and the concept of rule of the law in England and Wales. Although each of these five chapters has looked at different jurisdictions in the context of different areas of law, they are all concerned with the principle that separation of powers should be observed as one of the fundamental aspects of the rule of law, no matter whether in civil procedures, People’s Congress elections or the judicial mediation process. Explicitly or implicitly, justice, fairness and equity are held as some of the most fundamental elements of the rule of law, which should be respected by everyone. 1.09 With regard to the relationship between law and religion, Professor Hoong Phun LEE has addressed the phenomenon of ‘Islamism’ or ‘Islamisation’ and how it interacts with western notions of constitutional rule, with emphasis on the rule of law and constitutionally entrenched guarantees of fundamental freedoms. Dr. Rajesh SHARMA has discussed the rule of law and religious faith and beliefs in the context of how Indian courts are confronted with religious issues. Rev. Dr. Noel DIAS and Roger GAMBLE have considered the relationship between the Decalogue and Sri Lankan Criminal Law and the definition of offences as a prerequisite for the rule of law. Although focusing on the relationships between the rule of law and different religions, each of these three chapters examines the increasingly intensified test of boundaries between different religions, political, social and philosophical value systems, and the legal systems that are founded on the rule of law.

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Introduction from the Editors

7

1.10 We hope that Anton will take the excellent and original scholarship presented in this Festschrift as a sincere token of our appreciation for him. It is a great pleasure to be able to contribute to the discussion of some of the core issues in the understanding and observance of a subject that is so close to his heart: the rule of law from the perspectives of international law, domestic law, and the law and religion. We look forward to our contributors’ thoughts reaching an international forum and becoming accessible to a wider audience. We hope that this book will contribute to the promotion of a better understanding of the concept of rule of law and its implications, including how the rule of law has interacted and continues to interact with international laws, domestic laws and religions over time to meet the changing needs and aspirations of human dignity worldwide. 1.11 As well as expressing our esteem for Anton, the editors wish to thank the Chief Justice of Hong Kong, Honourable Mr Geoffrey MA, who most kindly agreed to write the foreword for this volume. We are extremely grateful to all of our contributors for taking time out of their busy schedules to research and write such valuable contributions to the literature on the ever more important role that the rule of law plays in various jurisdictions and diverse areas of law. We are especially indebted to Patrick KWONG and Edmund CHAN for their generous assistance in bringing this volume to publication. 1.12 Special thanks also go to Helen SUEN, Emily CHOW and Prisca CHAN for their unfailing administrative and organisational support throughout the project, to Helen KIM for patient proofreading and excellent editorial input, and to Karen NGAI for compiling the index. Last, but not the least, our most heartfelt thanks go to the School of Law

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of the City University of Hong Kong and all colleagues who supported and contributed to this project in one way or another.

Prof. Guiguo WANG Dean and Chair Professor of Chinese and Comparative Law School of Law City University of Hong Kong

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Dr. Fan YANG LLMArbDR Programme Leader Assistant Professor School of Law City University of Hong Kong

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The Rule of Law Sans Frontières: Cross-Border Aspects of the Principle of Legality Neil H. ANDREWS1

(1) Introduction 2.01 It is a pleasure to contribute to this volume. Anton COORAY’s impressive scholarship and academic leadership embrace public and private law matters, substantive and procedural issues, domestic and international fields. It is not surprising that he has won a wide collection of friends and admirers in all parts of the globe. 2.02 Lord Bingham’s study of the ‘rule of law’ concept prescribes a list of fundamental legal principles or precepts.2 But these are not exhaustive. The tentacles of ‘the rule of law’ can extend to ‘cross-border’ matters. The purpose of this chapter is to consider three recent English decisions (decided between 2010 and 2012) in the field of cross-border recognition of foreign judgments or foreign arbitral awards. Expressly or implicitly, these cases turn on conceptions of ‘the rule of law’. This triad of cases demonstrates the flexibility and strength of the principle of legality.

1 2



Professor, Faculty of Law, University of Cambridge, United Kingdom Tom Bingham, The Rule of Law (Allen Lane 2010).

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2.03 The three topics are: (i) Is an English court bound to set aside a default judgment, Y, granted in recognition of a final foreign judgment, X (when decision X has already survived intact following appellate scrutiny in that foreign jurisdiction) if the judgment X is subsequently reversed within that foreign legal system by decision Z, but by reference to evidence available at the time of foreign decision X? Here the connection with ‘the rule of law’ doctrine was explicit: the English court declared decision Z to be a violation of ‘the rule of law’. This topic arose in the English Court of Appeal in Merchant International Co Ltd v Natsionalna Aktsionerna Kompaniia Naftogaz Ukrainy (2012).3 (ii) In Yukos Capital Sarl v. OJSC Rosneft Oil Co (2012),4 the English Court of Appeal had to decide this issue: is the English court precluded by judgment B, given in Utopia, which declared that judgment A, given in Ruritania, is open to objection for lack of judicial independence (or bribery or corruption)? Of course, ‘the rule of law’ doctrine justifies the refusal to give effect to the Ruritanian decision A, if there is a lack of independence, etc. But the further issue, a matter of some delicacy, is whether the courts of Utopia, which were first seised with this matter (here the Dutch court) should have the final say (in decision B) on the issue of whether the court responsible for decision A lacked judicial independence, etc. On that last point, the English answer is ‘no’: determination

3



4



[2012] EWCA Civ 196; [2012] 1 WLR 3036; noted M Ahmed (2012) CJQ 417. [2012] EWCA Civ 855; [2013] 1 All ER 223; [2012] 2 Lloyd’s Rep 208.

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11

in judgment B of the judicial independence issue concerning judgment A is not decisive, and does not preclude the third court contemplating this issue. The reason given by the English Court of Appeal in the Yukos case (2012)5 to support that non-preclusive approach is that the public policy doctrine applicable in the respective jurisdictions might differ. That is a possibility. But the better explanation is that factual determinations on such a matter should be open to each foreign jurisdiction and that the doctrine of ‘issue estoppel’ should not preclude re-examination of this matter. (iii) Is an enforcing court, acting under the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention), required to conduct a complete review of a foreign arbitral tribunal’s determination that an unnamed party, R, should be regarded as a party to an arbitration clause to which only P and Q are signatories and named parties? The Supreme Court of the United Kingdom in the Dallah case held that the New York Convention demands a full inquiry by the enforcing court of that fundamental preliminary and jurisdictional question, ‘who is a party?’. Here ‘the rule of law’ doctrine is relevant at two levels: (a) it is surely axiomatic that an arbitral award should not enjoy authority to render a binding award if there has been no true consent to the arbitral reference, and no acquiescence in the arbitral process, by the alleged award judgment debtor; (b) nor should it be necessary for the award judgment debtor to attempt first to

5



ibid.

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challenge the award in the jurisdiction where the arbitral process had its ‘seat’; this is because the New York Convention requires, as a matter of international obligation, the enforcing court to conduct such a scrupulous inquiry into this matter.

(2) A Foreign Court Improperly Invalidates a Foreign Judgment Already Recognised by the English Court 2.04 In Merchant International Co Ltd v Natsionalna Aktsionerna Kompaniia Naftogaz Ukrainy (2012),6 the English Court of Appeal refused to set aside an English default judgment obtained in recognition of a foreign judgment, even though, subsequent to the English judgment, the foreign judgment had been set aside by the relevant national court (in the Ukraine). The rescission of the Ukrainian judgment in the Ukraine involved fundamental re-opening of that judgment in a manner contrary to the principles of ‘the rule of law’, finality, and legal certainty. This was illegitimate because evidence to support the ground of subsequent attack had been available in the first Ukrainian proceedings. 2.05 In this case, the assignee of a contractual debt owed by an energy company registered in Ukraine (in fact, a wholly owned state company) had successfully sued and obtained judgment from the Ukraine court in Kiev in April 2006. The assignee, Merchant International, is incorporated under Delaware law. In June 2006, the Supreme Court of Ukraine upheld this order; the judgment award was USD $24,719,564. But a statute was enacted

6



[2012] EWCA Civ 196; [2012] 1 WLR 3036; noted M Ahmed (2012) CJQ 417.

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13

that prevented enforcement of judgments against energy companies. And so the judgment creditor commenced London proceedings in April 2010 to enforce this foreign judgment. The judgment debtor failed to enter a defence, and so judgment by default was obtained in London on 28 February 2011. In April 2011, the judgment debtor persuaded the Supreme Court of the Ukraine to rescind the Ukrainian 2006 judgment on the basis that the assignee, Merchant International, had not at the date of assignment enjoyed full corporate capacity under Delaware law. The documentary evidence adduced for this purpose was a record of the companies register in Delaware. This information had been available at all stages of the long proceedings in this litigation. In November 2011, the Kiev commercial court gave a fresh judgment in the same matter between the parties, which was in favour of the judgment debtor, declaring it was not liable to Merchant International. However, the basis of this decision was not lack of corporate capacity (and so the Delaware record was in fact a spurious defence). Instead, the Kiev commercial court fastened onto the absence of a signature by the assignor in a portion of the relevant purported assignment documentation. However, this decision appears to represent Russian law on the validity of the purported assignment. This decision, therefore, surprisingly upheld a formalistic challenge. The opportunity for that challenge arose only because the Ukrainian Supreme Court had earlier rescinded the 2006 judgment by reference to material available in 2006. 2.06 The English Court of Appeal rejected the argument that the English default judgment should be set aside without further ado simply because the Ukraine judgment had been rescinded in the Ukraine. The correct decision was to maintain the default judgment, because the Ukrainian

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judgment had been rescinded in a way that offended the principle of legality. It was unacceptable that the decision had been re-opened by consideration of material available to the judgment debtor in 2006. The Court of Appeal accepted the submission made by the judgment creditor’s counsel that it would be contrary both to English public policy and to the Strasbourg jurisprudence concerning Article 6 of the European Convention on Human Rights for the final foreign judgment to be reopened ‘on the basis of points which he advanced or could reasonably have advanced in the original litigation’; this restriction rested on ‘a fundamental aspect of the rule of law’.7 The English Court of Appeal noted (a) that the Strasbourg case law establishes that a final decision, once the ordinary system of appeals has been exhausted, cannot be re-opened on factual grounds within that foreign jurisdiction unless ‘there is evidence not previously available through the exercise of due diligence that would lead to a different outcome of the proceedings’;8 and (b) that there would be a ‘flagrant’ breach of this principle of legal certainty for the foreign jurisdiction to permit a de novo review by reference to evidence available at the time of the earlier decision in order to protect the interests of a party associated with the foreign state itself.9 In conclusion, the English Court of Appeal was satisfied that the process whereby the first Ukrainian judgment (already upheld on appeal with that jurisdiction) was rescinded and then reversed by successive Ukrainian decisions was irregular and incompatible with English public policy and with the Strasbourg conception

7 8

9



ibid [58]. ibid [59], quoting passages from the European Court of Human Rights, in Pravednaya v Russia (Application No 69529/01) 18 November 2004, [24]-[27]. [2012] EWCA Civ 196; [2012] 1 WLR 3036 [60]: citing the Agrokompleks case (Application No 23465/03) 6 October 2011, [151].

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15

of ‘the rule of law’ in this context.10 Furthermore, TOULSON LJ in the English Court of Appeal referred to such a judgment (that is, the English default, and no doubt the earlier Ukrainian money judgment) as an ‘asset’ on which third parties might have relied.11 2.07 The decision in the Merchant International case establishes, therefore, that (i) the English courts should not set aside a default judgment entered in England in recognition of a foreign civil judgment, where the former is final, even though there has been a subsequent rescission of the relevant foreign judgment, provided (ii) that this rescission involved an illegitimate reference to evidence available at the time of the earlier final decision; and a fortiori the default judgment will stand if (iii) there is a clear inference that the judgment debtor who has obtained this rescission is an emanation of the relevant foreign State. This decision involved relations between two Convention States, both party to the European Convention on Human Rights, namely the United Kingdom and the Ukraine. If, for example, the foreign state were the United States of America or Brazil, Article 6 and the Strasbourg jurisprudence would not apply. But the decision in the Merchant International case appears to rest equally on considerations of English public policy, which apply more broadly than the European Convention. It does not appear that there had been any concrete steps already taken in England to obtain enforcement of the English default judgment. Nor does it appear to have been regarded as crucial that the Ukrainian Supreme Court’s decision to rescind the original Ukrainian judgment had been based

10

[2012] EWCA Civ 196; [2012] 1 WLR 3036 [72], [73]. ibid [78].

11

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on a reason (the allegation that the assignee company had lacked corporate capacity) that the still later Kiev Commercial Court had not accepted. 2.08 The English Court of Appeal’s decision does not address the situation where the final foreign judgment has already been rescinded, although by an illegitimate foreign process, before the English court is asked to give judgment recognising the earlier judgment. In that situation it would be a strong application of the rule of law concept to accord finality and hence priority to the first foreign judgment even though it has already been declared invalid in the relevant foreign jurisdiction by an illegitimately broad reopening of the original decision.

(3) Should the English Courts Simply Follow a Foreign Court’s Declaration that Another Foreign State’s Court Lacked Judicial Independence? 2.09 HAMBLEN J’s decision in Yukos Capital Sarl v. OJSC Rosneft Oil Co (2011)12 was reversed by the Court of Appeal in the Yukos case (2012).13 HAMBLEN J had held that the English Commercial Court, in accordance with the principle of issue estoppel, should acknowledge that an arbitration award-debtor was bound by a Dutch court’s decision. The Dutch court had held that a Russian court lacked independence when it had decided to annul four Russian arbitration awards. The Dutch court, as noted by HAMBLEN J, had found that the Russian courts in

12

[2011] EWHC 1461 (Comm); [2012] 1 All ER (Comm) 479; [2011] 2 Lloyd’s Rep 443; [2011] 2 CLC 129. 13 [2012] EWCA Civ 855; [2013] 1 All ER 223; [2012] 2 Lloyd’s Rep 208.

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this respect were controlled by the Russian State and that a consistent line of non-independent decision-making had been proved.14 The Dutch court had proceeded to enforce the Russian arbitral awards. The principal sum (approximately USD $425 million) had been paid. The present English proceedings were brought to seek recovery of interest (approximately USD $160 million), additional compensation attributable to the dilatory satisfaction by the award-debtor of the award. HAMBLEN J’s decision, on a preliminary point, effectively opened the path to such supplementary enforcement. 2.10 However, the English Court of Appeal15 held that issue estoppel did not apply here. This was because the questions of whether the Russian court’s decision had been vitiated by extraneous pressure and whether that court lacked impartiality and independence had been resolved by the Amsterdam Court of Appeal applying the Dutch test of public policy. This meant that the issue before the English court was not the same because it required the English court to apply independently and afresh English public policy in this regard. This decision is attractive. It would be surprising and unacceptable if the English courts were in effect to abdicate responsibility for testing whether foreign courts lack impartiality and independence by deferring under the rubric of issue estoppel to a third country’s prior determination of this point. 2.11 The following passage contains RIX LJ’s encapsulation (giving the English Court of Appeal’s judgment) of the need for a fresh and independent English assessment of

14

[2011] EWHC 1461 (Comm); [2012] 1 All ER (Comm) 479 [35]. [2012] EWCA Civ 855; [2013] 1 All ER 223; [2012] 2 Lloyd’s Rep 208.

15

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the Russian decision, rather than for the English court to rubber-stamp under the aegis of issue estoppel the Dutch court’s condemnation of the Russian decision: ‘...it makes a great deal of difference whether the issue is being determined by reference to Dutch public order or English public order which is (or may well be) different.’16 Of course, the reality is that English public policy is unlikely to be more or less tolerant than Dutch public policy in the matter of corruption and bribery of foreign judges. The true issue is more likely to be whether the findings of fact made when applying that branch of public policy are sound. The English decision attractively creates a fresh opportunity for the evidence relevant to this allegation to be considered by the English court. Issue estoppel does not preclude that determination. A highly sensitive and inevitably contentious factual dispute is left open for the English court to decide for itself. Its hands are not tied by a foreign court’s condemnation of another foreign court’s conduct.

(4) An Enforcing Court’s Responsibility to Double-Check a Foreign Arbitral Tribunal’s Determination Concerning the True or Legitimate Parties to an Arbitration Agreement 2.12 The Supreme Court of the United Kingdom in Dallah Real Estate & Tourism Holding Co v. Pakistan (2010)17 held that a Paris award could not be recognised in England, under the New York Convention, because the French arbitral tribunal had incorrectly determined that

16

ibid [156], [157]. [2010] UKSC 46; [2011] 1 AC 763; Jan Kleinheisterkamp, ‘Lord Mustill and the courts of tennis — Dallah v Pakistan in England, France and Utopia’ (2012) 75 MLR 639, 640 at n 2 listing various comments on this decision.

17

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the Pakistan Government was a party to the relevant arbitration agreement.18 2.13 Under the New York Convention, enacted as section 103, Arbitration Act 1996 (England and Wales), the question of whether a person was in fact party to an arbitration agreement is to be determined in accordance with either the parties’ chosen law (but in the Dallah case the arbitration agreement did not contain any such choice of law), or the law of the jurisdiction in which the award was made (here, French law). Accordingly, French law applied here. Applying the relevant French test for this purpose, the Supreme Court of the United Kingdom was satisfied that the Paris arbitral tribunal had adopted faulty reasoning when concluding that Pakistan was a party to the agreement (even though it had not been named as a party within the arbitration agreement, nor had it signed that clause). The Pakistan Government had neither signed the arbitration agreement, nor had it been named as a party to that agreement. Instead that Government had structured the relevant substantive transaction (including, the literal terms of the arbitration agreement) by using a trust. The English court held that the Pakistan Government should not be regarded as a party to the arbitration agreement, and that the arbitration award

18

Generally on the issue of third parties and arbitration, see Nigel Blackaby and Constantine Partasides (eds), Redfern and Hunter on International Arbitration (5th edn, Oxford University Press 2009) 2.39 ff; Bernard Hanotiau, Complex Arbitrations: Multiparty, Multicontract, Multi-issue and Class Actions (Kluwer Law International 2005); Andrea Marco Steingruber, Consent in International Arbitration (Oxford University Press 2012) (Oxford International Arbitration Series); Jan Kleinheisterkamp, ‘Lord Mustill and the courts of tennis — Dallah v Pakistan in England, France and Utopia’ (2012) 75 MLR 639, 640 n 3. On the power to add a third party under the London Court of International Arbitration (LCIA) rules, with the consent of party A, and with the consent of the third party, even if party B does not consent, see Blackaby and Partasides 2.217, noting LCIA Rules, Art 22(h).

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was, therefore, flawed in deciding that this Government should be regarded as a party. 2.14 The United Kingdom Supreme Court held that the arbitral tribunal had erred because it had not applied French law (or had applied it in an impure manner) to determine whether the Pakistan Government was in fact a party to the arbitration agreement (this being the applicable law to the construction of the arbitration agreement, in default of party choice of another system). 2.15 The correct approach, founded on French law, required investigation of whether the parties’ dealings disclosed a common subjective intention (express or implied), shared by Pakistan and the named arbitration parties, that Pakistan would be treated as party to the arbitration agreement. Instead the Paris arbitral tribunal, to buttress their conclusion that Pakistan was party to this arbitration agreement, had erred by invoking more general notions of ‘good faith’. These nebulous notions were insufficiently tied to the question of common intention.19 2.16 The English Court of Appeal (this point was not pursued on further appeal to the Supreme Court) also rejected Dallah’s further argument that the French arbitral tribunal’s decision on the question of whether Pakistan was party to the arbitration agreement was binding as a matter of issue estoppel. It was not binding because the French arbitral tribunal had not applied French law to this question, as it should have.

19

The Court of Appeal summarised this curious aspect: [2009] EWCA Civ 755; [2010] 2 WLR 805; [2010] Bus LR 384; [2010] 1 All ER 592; [2010] 1 All ER (Comm) 917; [2010] 1 Lloyd's Rep 119 [24], [25].

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2.17 The English court considered that it was inconsistent with the New York Convention and section 103 of the Arbitration Act 1996 (England and Wales) for the court in the country where recognition or enforcement is sought to be precluded by issue estoppel from rehearing this question concerning the arbitration agreement’s validity and effect. In the Court of Appeal, MOORE-BICK LJ said that the structure of the New York Convention presupposes that the foreign enforcing court should be able to examine the present issue—whether the award is correct in declaring a person or entity to be party to the arbitration agreement— and this question is not one which is exclusively ceded by that Convention to the arbitral tribunal (subject only to the supervisory jurisdiction of the court of the seat).20 He also held that the fact that Pakistan had chosen not to challenge the French arbitration award within the French supervisory court system did not raise an estoppel against the Government of Pakistan so that it was precluded by raising this issue during proceedings in a foreign jurisdiction concerning enforcement under the New York Convention.21 2.18 The Dallah case (2010) shows that foreign enforcement proceedings under the New York Convention can generate considerable delay and cost, and that this is far removed from the ideal of a fast route to foreign recognition and enforcement of arbitral awards. On the other hand, considering the fundamental nature of the question, it is pleasing that the English courts have shown that an arbitral tribunal’s jurisdictional determination that an entity is (in its view) a party to an arbitration agreement

20

ibid, per Moore-Bick LJ [18]. ibid, per Moore-Bick LJ [56].

21

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should not be lightly ratified by the enforcing court: there should be a ‘final check’ on the preliminary issue of whether a party is indeed truly a party to the relevant arbitration. The enforcing court’s capacity to conduct a searching review of this matter will inject much greater rigour into this fundamental threshold issue. Given the explicit hesitation of two members of the Paris arbitral tribunal in this case on this very jurisdictional issue, it was inevitable that the enforcing court’s searchlight would be trained closely at this possible weakness. 2.19 But the twist in the Dallah litigation was when a French court (Paris Cour d’appel: the French court nominated to review arbitral awards) later reached the opposite conclusion: that the Paris award was sound (at least according to French arbitration principles), so that the Pakistan Government should be regarded as a party to the arbitration agreement.22 This decision was made pursuant to Article 1502(1) of the French Code of Civil Procedure, which permits the court to refuse to enforce an award ‘if the arbitrator has ruled upon the matter without an arbitration agreement or [the putative arbitration agreement is] a void and lapsed agreement’. The French court’s ‘transnational’ perspective involved posing different criteria (the Dalico doctrine)23 compared with the criteria adopted by the English courts when purporting to apply French law to the relevant arbitration agreement. The French court noted that the Pakistan Government negotiated the contract, and that the Trust created by the

22

Gouvernement du Pakistan v. Société Dallah Real Estate & Tourism Holding Co, Cour d'appel de Paris, Pôle 1 — 1e ch, 17 February 2011, n° 09/28533 accessed 11 June 2013. 23 Municipalité de Khoms El Mergeb v. Dalico, Cour de Cassation, First Civil Chamber [Cass. 1e civ] 20 December 1993, JDI 1994, 432, note E Gaillard.

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Government was merely a signatory; that the Government was involved in the performance of the contract; that it effectively controlled the same transactions’ termination; that the Trust was ‘purely formal’; and concluded that the Government was the true Pakistani party to the transaction. 2.20 The Paris Cour d’appel’s decision reveals that a much more fluid test applies under French arbitral practice when the arbitration has a transnational character.24 This suggests that in future cases greater rigour is required so that the enforcing court can ascertain with confidence the foreign test applicable at the relevant seat. 2.21 The ‘lesson’ from the Dallah case is that determination of this issue (the true parties to the arbitration agreement) in a foreign court (the enforcing court under the New York Convention) can require sophisticated expert evidence on this aspect of foreign arbitration law. This proved in the Dallah case to be a difficult and fraught matter. The English courts, assessing the (party-appointed) expert evidence, concluded (wrongly, as it now appears) that the test under French law for determining whether a person or entity was truly party to an arbitration agreement was a rather formal and traditional criterion of consensus.

24

James Clark, ‘Paris Court of Appeal Upholds ICC Award in Dallah case’ Practical Law Company (3 March 2011) accessed 10 June 2013: ‘... the French court did not focus on French law principles... This solution is inspired by the recognised desire of French courts to develop substantive rules for international arbitration that ensure that the outcome of a dispute does not depend on the particularities of a national law. This solution is also consistent with French case law on the extension of arbitration agreements to parties that are non-signatories but have participated in its negotiation and performance.’

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2.22 How does this difference of analysis and result leave the relevant award? If a third jurisdiction were to be asked to enforce the Dallah award (made by the arbitral tribunal in Paris), it seems highly likely that it would defer to the French court’s decision, rather than be guided by the Supreme Court of the United Kingdom’s conflicting decision. This is because (a) the French court is situated in the seat of the relevant arbitration and (b) it seems likely that the French court’s flexible and transnational reasoning in this matter would be regarded as more attractive. 2.23 Finally, if there has been a determination concerning the parties to the arbitration by the court of the ‘seat’ where the arbitration took place, it is arguable an English court might apply the doctrine of ‘issue estoppel’ to preclude itself from re-opening that determination. But, of course, on the facts of the Dallah case, this was not the sequence of events. Instead the French Cour d’appel’s decision occurred after the English courts had examined the matter.

(5) Concluding Remarks on the Cross-Border Vitality of ‘The Rule of Law’ 2.24 The three topics examined in this piece can be summarised as follows. 2.25 Transnational Finality of Judgment: As the English Court of Appeal decided in Merchant International Co Ltd v Natsionalna Aktsionerna Kompaniia Naftogaz Ukrainy (2012),25 where a final Ruritanian judgment A has been obtained, and it has next been recognised by

25

[2012] EWCA Civ 196; [2012] 1 WLR 3036; noted M Ahmed (2012) CJQ 417.

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25

an English default judgment B, and the Ruritanian court in judgment C later rescinds judgment A by receiving evidence available at the time of judgment A (and indeed there is a subsequent Ruritanian judgment D declaring the converse of the result in judgment A), the English court will not accord recognition to this volte-face. The reason is that it is contrary to Common Law and European Convention conceptions of ‘the rule of law’ for the finality of judgment A to be undercut at stage C by reference to material available at the time of judgment A. This is a strong and radical application of a transnational concept of the finality of civil judgments. The English decision was explicitly based on the notion of ‘the rule of law’. 2.26 Transnational Determinations Whether a Foreign Court Lacks Judicial Independence: The Court of Appeal in the Yukos case (2012)26 held that the English courts are not bound by the concept of ‘issue estoppel’ or ‘issue preclusion’ (a notion rooted in the notion of economy, finality, and consistency) from hearing afresh the allegation, already determined in judgment B by the court of Utopia, that judgment A given in Ruritania is objectionable because the latter’s court lacks judicial independence (or there has been bribery or corruption). Here (i) ‘the rule of law’ justifies an inquiry whether judgment A is objectionable because there has been a lack of judicial independence, etc; but (ii) ‘the rule of law’ does not require judgment B to be the binding and final determination of that issue. Proposition (i) is uncontroversial. Proposition (ii) can be justified on the two-fold basis that first, it is possible that different jurisdictions might apply different criteria when determining lack of judicial independence, etc; and second,

26

[2012] EWCA Civ 855; [2013] 1 All ER 223; [2012] 2 Lloyd’s Rep 208.

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more importantly in practice, the allegation that judgment A is open to objection on this basis is such a fundamental issue, indeed one which is so obviously fraught with diplomatic and commercial peril, that it should be open to successive jurisdictions to address this allegation, whether based on the same or new evidence. 2.27 Transnational Determination Concerning the Legitimate Parties to Arbitration Awards: The Supreme Court of the United Kingdom in Dallah Real Estate & Tourism Holding Co v. Pakistan (2010)27 held that a foreign arbitral award cannot be recognised in England, under the New York Convention, if the enforcing court, conducting a de novo investigation of the issue, concludes that a purported arbitral judgment debtor was neither a true party to the arbitration, nor did it acquiesce in those proceedings. Even though there has been no prior challenge within the courts situated at the ‘seat’ of the arbitration proceedings, such a searching and deep inquiry by the enforcing court is consistent with ‘the rule of law’ in this respect: arbitration rests on consent; from the perspective of foreign enforcement of arbitral awards, the existence or validity of an alleged arbitral party’s consent to that process cannot be precluded by the arbitral tribunal’s determination of that matter; therefore, the enforcing court must be satisfied that the arbitral tribunal was correct in identifying the relevant respondent as a true or legitimate party to the arbitration award.

27

[2010] UKSC 46; [2011] 1 AC 763; Kleinheisterkamp (n 17) 640 at n 2 listing various comments on this decision.

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The Rule of Law in India: The Chasm between Paper and Practice Surya DEVA1

(1) Backdrop 3.01 It gives me great pleasure to contribute this chapter in Professor Anton COORAY’s festschrift. Over the last eight years, I have had the opportunity to know and work with him in diverse capacities. Considering that most of our interactions have been in relation to administrative matters concerning the School of Law at City University, it is a fitting coincidence that this chapter is about the ‘rule of law’, because we have often discussed, debated and disagreed about how rules and regulations could (or should) be applied to given situations to achieve optimal outcomes. Apart from this context, the rule of law is an appropriate theme of this festschrift for another reason: the rule of law is an integral part of an area of public law — constitutional and administrative law — about which Anton has researched and written extensively. 3.02 This chapter seeks to examine the rule of law in India. In particular, I will describe the chasm between the rule of law on paper and in practice. This ‘paper versus practice’ analysis should be useful not only in understanding the reasons for a widely-perceived gap between the two but

1



Associate Professor, School of Law, City University of Hong Kong

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also in throwing some light on what remedial measures can bridge this gap. This chapter is thus about exploring the extent to which the constitutional promise of the rule of law matches the actual situation in India. 3.03 Although the term ‘rule of law’ is not used in the Indian Constitution anywhere,2 it is generally accepted that India is a country governed by the rule of law.3 The rule of law pervades the Constitution as an underlying principle and since the Supreme Court has declared it to be one of the ‘basic features’ of the Constitution,4 this principle cannot be taken away even by a constitutional amendment. There are, however, several red flags. The following account provided in the 2012 Rule of Law Index of the World Justice Project appears quite accurate in terms of highlighting both positives and negatives: India has a robust system of checks and balances (ranked thirty-seventh worldwide and second among lower middle income countries), an independent judiciary, strong protections for freedom of speech, and a relatively open government (ranking fiftieth

2



3



4



The term is, however, used frequently by Indian courts in their judgments. For instance, an online search of the Supreme Court’s reportable judgments delivered between 1 January 1950 and 31 December 2012 resulted in 1,737 hits of the term ‘rule of law’. See the Judgment Information System accessed 10 May 2013. This position can be contrasted with that of the People’s Republic of China, where Article 5 of the Constitution — after the 1999 amendment — expressly states that China ‘governs the country according to law and … under rule of law’. However, many commentators doubt whether China practices the rule of law. For a promising account of the continuous progress made by China in establishing a rule of law society, see Randall Peerenboom, China’s Long March towards Rule of Law (Cambridge University Press 2002). Indira Nehru Gandhi v Raj Narain, AIR 1975 SC 2295; SP Gupta v Union of India, AIR 1982 SC 149.

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globally and fourth among the lower-middle income countries). Administrative agencies do not perform well (ranking seventy-ninth), and the civil court system ranks poorly (ranking seventy-eight), mainly because of deficiencies in the areas of court congestion, enforcement, and delays in processing cases. Corruption is a significant problem (ranking eighty-third), and police discrimination and abuses are not unusual. Order and security — including crime, civil conflict, and political violence — is a serious concern (ranked second lowest in the world).5 3.04 This chapter will look at some of these aspects. However, before doing so, it will briefly revisit the conception of ‘rule of law’ and how it is used in this chapter. Writing in 1885, DICEY tried to define the rule of law as embodying three principles: the absolute supremacy of law, equality before the law, and the constitution not being the source but only the consequence of the rights of individuals as defined and enforced by courts.6 More recently, the 1959 Delhi Declaration — held under the aegis of the International Commission of Jurists — recognised the rule of law to be a ‘dynamic’ concept which should be employed not only to safeguard civil and political rights but also to establish social, economic, educational and cultural conditions under which an individual’s legitimate aspirations and dignity

5



6



Mark David Agrast and others, The World Justice Project: Rule of Law Index 2012–2013 (The World Justice Project 2013), 55. A. V. Dicey, An Introduction to the Study of the Law of the Constitution (10th edn/2nd Indian Reprint, Universal Law Publishing 1998) 202–03.

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may be realised.7 Other scholars have proposed their own list of principles integral to the rule of law.8 A distinction is also generally made between ‘formal’ and ‘substantive’ conceptions, or between a ‘thin’ and a ‘thick’ version of the rule of law.9 3.05 Although the rule of law is a ‘contested concept’,10 is ‘capable of different interpretations by different people’,11 and may be impossible to define with ‘scientific precision’,12 one can still identify some of its core features. For instance, with reference to India specifically, BAXI identifies four core interlinked notions of the rule of

  7 Norman S. Marsh, The Rule of Law in a Free Society: A Report on the International Congress of Jurists, New Delhi, India (5–10 January 1959) (International Commission of Jurists 1959) 3–14. The report contains specific recommendations with reference to the legislature, the executive, the judiciary and the legal profession, and the criminal process.   8 See Cheryl Saunders and Katherine Le Roy, ‘Perspectives of the Rule of Law’ in Cheryl Saunders and Katherine Le Roy (eds), The Rule of Law (Federation Press 2003) 1, 5; Stephane Beaulac, ‘The Rule of Law in International Law Today’ in Gianluigi Oalombella and Neil Walker (eds), Relocating and the Rule of Law (Hart Publishing 2009) 197, 203.   9 Brian Z. Tamanaha, On the Rule of Law: History, Politics, Theory (Cambridge University Press 2004) 91, and generally 91–113. See also Randall Peerenboom, ‘Varieties of Rule of Law: An Introduction and Provisional Conclusion’ in Randall Peerenboom (ed), Asian Discourses of Rule of Law: Theories and Implementation of Rule of Law in Twelve Asian Countries, France and the US (Routledge 2004), 1–10; Hilaire Barnett, Constitutional and Administrative Law (5th edn, Cavendish Publishing 2004) 69–95; Michael J. Trebilcock and Ronald J. Daniels, Rule of Law Reform and Development: Charting the Fragile Path of Progress (Edward Elgar 2008) 16–29. 10 Peerenboom, ‘Varieties of Rule of Law’ (n 8) 1. 11 Barnett (n 8) 69. See also Trebilcock and Daniels (n 8) 13. 12 Soli J. Sorabjee, ‘Rule of Law: An Unruly Horse? Some Reflections on its Application in India’ (2012) 101(4) The Round Table: The Commonwealth Journal of International Affairs 331.

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law: ‘rights’, ‘development’, ‘governance’, and ‘justice’.13 These four notions can be related to three aspects of the rule of law — combining features of both thin and thick versions — that I will discuss in this chapter. First, the rule of law operates as a check on governmental powers, including by requiring that laws are general, clear, predictable and prospective. Second, the rule of law implies that the state treats people equally and guarantees their human rights. Third, there should be a provision for judicial review of legislative and executive actions by an independent judiciary. These three aspects are interrelated. For example, the last two aspects complement the first aspect in that they limit the power of governmental agencies. Similarly, the power of judicial review by an independent judiciary is likely to strengthen the protection of human rights.

(2) Keeping Government Powers under Check 3.06 The Indian Constitution establishes a limited government. Being part of a federal system of government, both the central and state legislatures have the power to make laws, but only subject to express and implicit constitutional limitations. First of all, the Constitution specifies and demarcates the matters on which the central legislature and state legislatures can make law.14 Any law that breaches

13

Upendra Baxi, ‘Rule of Law in India: Theory and Practice’ in Peerenboom (ed), Asian Discourses of Rule of Law (n 8) 324, 328 and generally 328–40. Baxi argues that the rule of law in India is not merely a ‘sword’ against state domination but also a ‘shield’ empowering a progressive state intervention in civil society. Upendra Baxi, ‘The Rule of Law in India’ (2007) 3 Sur — Revista Internacional de Derechos Humanos 7, 15 (socialsciences.scielo.org/ pdf/s_sur/v3nse/scs_a01.pdf> accessed 15 May 2013. 14 Constitution of India 1950, arts 246, 248–254 read with Schedule IX.

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these limitations (e.g., a state law made on a matter within the exclusive competence of the central legislature) can be declared unconstitutional by courts.15 3.07 Second, the power of the executive to make laws by issuing ordinances is limited — both in terms of duration and situations triggering the exercise of such power.16 The executive, of course, cannot make a law on a matter on which the corresponding legislature lacks the competence to legislate.17 3.08 Third, although the Indian Constitution — having established a parliamentary form of government — does not follow any strict separation of powers,18 a system of checks and balances has been put in place. For instance, all the bills passed by the parliament require the president’s assent to become law.19 The parliament, on the other hand, has the power to impeach the president for violating the Constitution.20 3.09 Fourth, courts have held that any executive action without the support of a valid law will be void, more so if it

15

Medical and Educational Charitable Trust v State of Tamil Nadu (1996) 3 SCC 15. 16 Constitution of India, arts 123 and 213. See also D. C. Wadhwa v State of Bihar, AIR 1987 SC 579. 17 Art 123(3) provides: ‘If and so far as an Ordinance under this article makes any provision which Parliament would not under this Constitution be competent to enact, it shall be void.’ 18 Article 50 of the Constitution, however, mandates separation of the judiciary from the executive. 19 Constitution of India, art 111. 20 ibid, art 61.

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violates a fundamental right.21 Similar to the position in many other jurisdictions, laws cannot generally be retroactive, especially if they seek to impose any penalty or punishment.22 The judiciary also does not treat vague laws or administrative guidelines favourably. 3.10 Fifth, in a multi-party democracy, the presence of a free press and the requirement of periodic elections can guard against the abuse of governmental power. The Constitution expressly limits the term of legislatures,23 and the freedom of speech and expression under Article 19(1)(a) has been interpreted to include the freedom of press.24 3.11 All these checks — coupled with the fundamental rights provisions and the power of judicial review discussed later — provide effective means of checking the power of the legislature and executive. In practice, however, there are several issues that undermine the rule of law in India. Pervasive corruption in all governance institutions is one major problem,25 because one can use money, connections or power to bypass rules and regulations.26 There are many

21

Kharak Singh v State of UP, AIR 1963 SC 1295; Bijoe Emmanuel v State of Kerala, AIR 1987 SC 748. 22 Art 20(1). See also Mahendra P. Singh, Shukla’s Constitution of India (11th edn, Eastern Book Co. 2008) 177–81. 23 Constitution of India, arts 83 and 172. 24 Express Newspapers v Union of India, AIR 1958 SC 58; Bennett Coleman v Union of India, AIR 1973 SC 106. 25 The 2012 Corruption Perceptions Index of Transparency International places India at the 94th position out of a total 176 countries and territories in the world. Transparency International, ‘Corruption Perceptions Index 2012’ accessed 3 May 2013. 26 See C. Raj Kumar, ‘Corruption and its Impact on Human Rights and the Rule of Law: Governance Perspectives’ in C. Raj Kumar and K. Chockalingam (eds), Human Rights, Justice, and Constitutional Empowerment (Oxford University Press 2007) 153, 163-67 and generally.

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instances of government officials (including ministers) abusing their position to grant or secure licenses, permits, concessions and rights to exloit valuable natural resources. Furthermore, the government in power is often accused of undermining the autonomy of the Central Bureau of Investigation and using it to pursue corruption cases selectively — going soft on its political allies, while nailing the opponents.27 3.12 The process of making law as well as enforcing them is deficient too: either it may take several years to introduce laws to redress serious societal problems or the enacted laws are not implemented due to lack of political will or resources.28 Regarding lack of implementation of the plethora of laws and constitutional provisions, one commentator rightly notes that many of the ‘laws — especially those affecting individual rights and protections — are so unevenly and inadequately enforced that they effectively do not exist for large segments of India’s population’.29 3.13 There have also been instances when the government allegedly misused the executive power to issue ordinances.30 Despite the inroads made by the Right to Information Act 2005 in ensuring transparency in governance, decision-making remains shrouded in secrecy

27

See Sandeep Joshi, ‘After Court Rap, Centre Sets Up GoM on CBI Autonomy’ The Hindu (14 May 2013), accessed 15 May 2013. 28 See International Commission of Jurists (ICJ), Access to Justice: Human Rights Abuses Involving Corporations — India (ICJ 2011) 48–51. 29

Linda D. McGill, ‘Measuring the Rule of Law in India: A Volunteer Lawyer’s Experience’ (2008) 60(2) Maine Law Review 537. 30 See, e.g., A. G. Noorani, Constitutional Questions and Citizens’ Rights, Part I (Oxford University Press 2006) 60–62.

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and lacks real participatory character. The role of money in the electoral process and the election of politicians with criminal backgrounds to the legislature also raise doubts about the fairness of political process and the legitimacy of democratic institutions.

(3) Equality Guarantee and the Protection of Human Rights 3.14 Establishing an egalitarian society is one of the main goals of the India Constitution. The fundamental rights and the directive principles of state policy were the primary tools adopted to achieve this goal. Part III of the Constitution, entitled ‘Fundamental Rights’, comprises Articles 12 to 35, which lay down various rights, their limitations and remedies for their enforcement. The rights range from equality before the law to the freedom of speech and expression, protection against double jeopardy, the right to life and personal liberty, the right to education, the freedom of religion, prohibition of discrimination, protection of interests of minorities, and protection against arrest and unlawful detention. 3.15 It will be useful to analyse two fundamental rights provisions (Articles 14 and 21) in some detail. Article 14 prohibits the state from denying ‘to any person equality before the law or the equal protection of the laws’. The guiding principle of equality being that like should be treated alike and that unlike should be treated differently, Article 14 permits reasonable classification.31 The Supreme Court has invalidated several laws under Article 14

31

In order to be considered ‘reasonable’, the classification must be based on intellegible differentia and the differentia must have a rational relation with the objective sought to be achieved by a given law.

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because the classification was without a valid difference,32 or the basis of classification had no nexus to the object of the law,33 or the law established special courts for trial of certain cases or types of cases without any reasonable classification or guidelines,34 or the law singled out a person for special or discriminatory treatment.35 3.16 More important, however, has been the judicial employment of Article 14 to develop a broad principle of reasonableness.36 In E P Royappa v State of Tamil Nadu, the Supreme Court observed that ‘Equality is a dynamic concept with many aspects and dimensions and it cannot be “cribbed, cabined and confined” within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness.’37 Later on, the Court in Maneka Gandhi v Union of India held that ‘Article 14 strikes at arbitrariness in state action and ensures fairness and equality of treatment. The principle of reasonableness, which logically as well as philosophically is an essential element of equality or non-arbitrariness, pervades Article 14 like a brooding omnipresence.’38 Therefore, an allegation of discrimination vis-à-vis others is no longer

32

K Kunhikoman v State of Kerala AIR 1962 SC 723. P Rajendram v State of Madras AIR 1968 SC 1012. 34 State of West Bengal v Anwar Ali Sarkar AIR 1952 SC 75; Northern India Caterers Ltd. v State of Punjab AIR 1967 SC 1581. 35 Ameernnisa Begum v Mehboob Begum AIR 1952 SC 91; Ram Prasad v State of Bihar AIR 1953 SC 215. 36 See Mahendra P. Singh, ‘The Constitutional Principle of Reasonableness’ (1987) 3 Supreme Court Cases (Journal) 31. 37 (1974) 4 SCC 3, 38. 38 (1978) 1 SCC 248, 284. See also R D Shetty v International Airport Authority AIR 1979 SC 1628; Ajay Hasia v Khalid Mujib AIR 1981 SC 487. 33

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a pre-condition to attract Article 1439 and courts will strike down any arbitrary executive or legislative action unconstitutional for infringing Article 14.40 3.17 The jurisprudence surrounding Article 21 — which provides that ‘no person shall be deprived of his life or personal liberty except according to the procedure established by law’ — has also been significant. This provision has proved to be a residuary repository of many fundamental rights. ‘Life’ in this article has been interpreted by courts to mean more than mere physical existence;41 it ‘includes right to live with human dignity and all that goes along with it’.42 The ever-widening horizon of Article 21 is illustrated by the fact that the Supreme Court has, inter alia, read into it the rights to health,43 livelihood,44 free and compulsory education up to the age of 14 years,45

39

A L Kalra v Project &Equipment Corporation (1984) 3 SCC 316, 328. Mithu v State of Punjab AIR 1983 SC 473; Central Inland Water Corporation v B N Ganguly (1986) 3 SCC 156; DTC v DTC Mazdoor Congress AIR 1991 SC 101; Common Cause v Union of India (1996) 6 SCC 530; Shivsagar Tiwari v Union of India (1996) 6 SCC 558. 41 See, for the evolution of such an interpretation, Kharak Singh v State of UP AIR 1963 SC 1295; Sunil Batra v Delhi Administration (1978) 4 SCC 494; Olga Tellis v Bombay Municipal Corporation AIR 1986 SC 180; Francis Coralie v Union Territory of Delhi AIR 1981 SC 746; Bandhua Mukti Morcha v Union of India AIR 1984 SC 802; Consumer Education & Research Centre v Union of India (1995) 3 SCC 42; Bodhisattwa Gautam v Subhra Chakraborty (1996) 1 SCC 490; Visakha v State of Rajasthan AIR 1997 SC 3011. 42 Francis Coralie v Union Territory of Delhi, AIR 1981 SC 746, 753 (per Justice Bhagwati). 43 Parmanand Kataria v Union of India AIR 1989 SC 2039; Paschim Banga Khet Mazdoor Samity v State of West Bengal (1996) 4 SCC 37. 44 Olga Tellis v Bombay Municipal Corporation AIR 1986 SC 180; DTC Corporation v DTC Mazdoor Congress AIR 1991 SC 101. 45 Unni Krishnan v State of AP (1993) 1 SCC 645. 40

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unpolluted environment,46 shelter,47 clean drinking water,48 privacy,49 legal aid,50 speedy trial,51 and various rights of under-trials (persons who have been charged with a crime), convicts and prisoners.52 Another innovative use of this provision has been to redress violation of the right to life and personal liberty by non-state actors53 and to grant compensation for violation of fundamental rights.54 3.18 Although the Constitution framers expressly rejected the due process requirement in Article 21, the Supreme Court introduced this guarantee by judicial interpretation.55

46

Indian Council for Enviro Legal Action v Union of India (1996) 3 SCC 212; M C Mehta v Union of India (1996) 6 SCC 750; Vellore Citizens Welfare Forum v Union of India (1996) 5 SCC 647; Narmada Bachao Andolan v Union of India (2000) 10 SCC 664. 47 Gauri Shankar v Union of India (1994) 6 SCC 349. 48 A P Pollution Control Board II v M V Nayudu (2001) 2 SCC 62. 49 Kharak Singh v State of UP AIR 1963 SC 1295; Govind v State of MP AIR 1975 SC 1378; R Raj Gopal v State of Tamil Nadu (1994) 6 SCC 632; PUCL v Union of India AIR 1997 SC 568; ‘X’ v Hospital Z (1998) 8 SCC 296. 50 M H Hoskot v State of Maharashtra AIR 1978 SC 1548; Hussainara Khatoon v State of Bihar AIR 1979 SC 1369; Khatri v State of Bihar AIR 1981 SC 928; Suk Das v Union Territory of Arunachal Pradesh AIR 1986 SC 991. 51 Hussainara Khatoon (I) to (VI) v Home Secretary, Bihar (1980) 1 SCC 81, 91, 93, 98, 108 and 115; Kadra Pahadiya v State of Bihar AIR 1982 SC 1167; Common Cause v Union of India (1996) 4 SCC 33 and (1996) 6 SCC 775; Rajdeo Sharma v State of Bihar (1998) 7 SCC 507 and (1999) 7 SCC 604. 52 Sunil Batra v Delhi Administration AIR 1978 SC 1675; Prem Shankar v Delhi Administration AIR 1980 SC 1535; Munna v State of UP AIR 1982 SC 806; Sheela Barse v Union of India AIR 1986 SC 1773. 53 See, for example, M C Mehta v Union of India (1987) 1 SCC 395; Consumer Education & Research Centre v Union of India (1995) 3 SCC 42; Kirloskar Brothers Ltd. v ESIC (1996) 2 SCC 682; Bodhisattwa Gautam v Subra Chakraborty AIR 1996 SC 922; Vishaka v State of Rajasthan AIR 1997 SC 3011; ‘X’ v Hospital ‘Z’ (1998) 8 SCC 296; M C Mehta v Kamal Nath AIR 2000 SC 1997. 54 Rudul Sah v State of Bihar (1983) 4 SCC 141; Bhim Singh v State of J & K (1985) 4 SCC 677; Nilabati Behra v State of Orissa (1993) 2 SCC 746. 55 Maneka Gandhi v Union of India, AIR 1978 SC 97.

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Furthermore, by a joint reading of Articles 14 and 21, courts have basically developed a substantive model of rule of law — any law or executive action that is not ‘just, fair and reasonable’ can be declared unconstitutional.56 For example, the Supreme Court invalidated a penal provision prescribing a mandatory death sentence for murder committed by a life convict.57 More recently, the Delhi High Court ruled that Section 377 of the Indian Penal Code ‘insofar [as] it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution.’58 3.19 In addition to Part III fundamental rights, Part IV of the Constitution contains a list of directive principles of state policy. While these principles — most of which relate to socio-economic rights — are non-justiciable,59 courts have employed these to interpret, and in turn extend the scope of, fundamental rights. As noted above, Article 21 has been the most significant beneficiary of this judicial approach.60 3.20 Despite these significant provisions in Parts III and IV of the Constitution, many rights (especially socioeconomic rights) remain unfulfilled in practice. Even an activist judiciary has not made much of a difference to the situation: the mere recognition of a plethora of rights,

56

Singh, Shukla’s Constitution of India (n 21) 201-04. Mithu v State Punjab, AIR 1983 SC 473. 58 Naz Foundation v Government of Delhi, WP(C) No.7455/2001 (2 July 2009) para 132. 59 Art 37. 60 See M P Jain, Indian Constitutional Law, Vol I (5th edn, Wadhwa and Company 2003) 1309-36. 57

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without enforcement, only results in ‘symbolic justice’.61 The stark reality of illiteracy, trafficking of women, child and bonded labour, custodial violence, sexual harassment of women, high mortality rate, hunger deaths, lack of access to basic facilities like health care and drinking water, violence against religious minorities, and limited legal aid undermine the constitutional promise of equality, liberty and justice. This situation is affirmed by the United Nation’s Development Programme’s Human Development Index (HDI), which ranks India 136th out of 187 countries and places the HDI progress (i.e., a long and healthy life, access to knowledge and a decent standard of living) in India below the regional average of South Asia.62 Although there has been a significant drop in the poverty level in view of fast economic growth and various schemes launched by the government to provide work to the poor,63 India remains the poorest country in the G20 group.64 3.21 The law and order situation in the country is also not conducive for the rule of law, with certain parts of the country being ‘no-go’ areas even for the administration. Violence against women, discrimination against people belonging to lower castes and the displacement of tribal population for development tend to exclude a significant

61

Surya Deva, ‘Public Interest Litigation in India: A Critical Review’ (2009) 28 Civil Justice Quarterly 19, 36–37 and generally. 62 UNDP, ‘India — Country Profile: Human Development Indicators’ accessed 15 May 2013. 63 ‘India sees a big drop in poverty as number of poor falls from 37% to 30% in 5 years’, Economic Times (New Delhi, 20 March 2012) accessed 15 May 2013. 64 ‘Economic Survey 2012–13: India poorest among G20 nations despite growth’, India Today (New Delhi, 15 March 2012) accessed 15 May 2013.

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population from participating in political, social, educational, cultural and economic spheres. People without resources are also likely to experience denial of the right to a fair hearing or trial, as the case may be. Last but not least, the government in recent years has shown decreased tolerance to criticism by the public, and on occasions it has sought to curb social media, raising concerns about government restrictions on the freedom of speech and expression for non-genuine reasons.65

(4) Judicial Review by an Independent Judiciary 3.22 The power of an independent judiciary to review the decisions of the other two organs of the government is considered an integral aspect of the rule of law, and the Indian Constitution does everything possible to put this mechanism in place. Judges of the Supreme Court and the High Courts are appointed by the President in ‘consultation’ with relevant judges of these courts.66 Subsequent to the decision in Supreme Court Advocates on Record Association v Union of India,67 judges of the higher courts are in essence appointed by the judiciary itself.68 Detailed provisions have also been made to provide judges security of tenure69 and protect their salaries, allowances and

65

See, e.g., ‘Censoring social media curbs free speech, say netizens’, Hindustan Times (New Delhi, 16 January 2012), accessed 15 May 2013. 66 Constitution of India, arts 124(2) and 217. 67 (1993) 4 SCC 441. See also In re, Presidential Reference, AIR 1999 SC 1. 68 See Mahendra P. Singh and Surya Deva, ‘The Constitution of India: Symbol of Unity in Diversity’ (2005) 53 Jahrbuch des Offentlichen Rechts der Gegenwart 649, 673-74. 69 Constitution of India, arts 124 and 218.

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privileges.70 Legislative bodies are barred from debating the conduct of judges unless dealing with impeachment motions.71 3.23 Although the power of judicial review does not require express recognition in a constitutional text, Article 13(2) of the Indian Constitution provides such recognition by stating that the state ‘shall not make any law which takes away or abridges’ the fundamental rights. The remedy to approach the Supreme Court for violation of fundamental rights under Article 32 is in itself a fundamental right.72 The Court has widened the scope of this power over the years by (i) implying many new rights within the ambit of Article 21; (ii) charting the course of public interest litigation to enhance access to justice for the masses; (iii) declaring judicial review a ‘basic feature’ of the Constitution and thus putting this beyond the parliament’s amendment power; and (iv) conferring on itself the power to review the validity of even constitutional amendments. 3.24 An independent judiciary armed with extensive power of judicial review is generally regarded as conducive to sustaining the rule of law. But in reality, there are a few aspects of the judicial system that are undermining India’s march towards rule of law. Accountability of judiciary is as critical as its independence, otherwise judges might start behaving as if they are above the law or a law unto themselves. It is a matter of concern that at this point in time there are not many checks on the Indian judiciary’s powers and the conduct of judges. The Supreme Court

70

ibid, arts 125 and 221. ibid, arts 121 and 211. 72 A similar (and, in fact, broader) power is vested with the High Courts under Article 226. 71

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has usurped — by judicial interpretation — the power of appointment of the judges of higher judiciary. Vacancies remain unfilled for years,73 and the appointment system is described as ‘opaque’.74 The Court also continues to encroach upon the domains of the executive and legislature in an inconsistent and unprincipled manner.75 Moreover, the judiciary is not free from corruption and accountability measures such as impeachment of the judges of higher courts do not seem to work.76 The idea of establishing a National Judicial Commission to enhance accountability of the judges of the higher courts has been discussed since the 1990s, but no progress has been made so far in accomplishing this goal.77 Any attempt to bring more transparency and accountability is seen by the judiciary as interfering with its independence.

73

As on 31 March 2012, 6 out of 31 positions were vacant in the Supreme Court, while 269 positions were vacant in various High Courts out of a total of 895. Supreme Court of India, ‘Court News’ (January-March 2012) 3 accessed 14 May 2013. 74 ‘Judges’ appointment system opaque, needs reforms, Kapil Sibal says’, Times of India (New Delhi, 14 May 2013) accessed 14 May 2013. 75 See Surya Deva, ‘Constitutional Courts as Positive Legislators: The Indian Experience’ in Allan Brewer-Carias (ed), Constitutional Courts as Positive Legislators: A Comparative Law Study (Cambridge University Press 2011) 587. 76 For example, an attempt to impeach a Supreme Court judge (Justice Ramaswami), against whom corruption charges were upheld by the Inquiry Committee, failed in 1993. Singh, Shukla’s Constitution of India (n 21) 476. See also Noorani (n 29) Part II, 11-24, 47-55; Rajeev Dhavan, ‘Judicial Corruption’, The Hindu (22 February 2002) accessed 3 May 2013. 77 See J Venkatesan, ‘Set up National Judicial Commission’, The Hindu (17 September 2008) accessed 3 February 2013; Rajindar Sachar, ‘National Judicial Council’ (People’s Union for Civil Liberties Bulletin, December 2006) accessed 3 February 2013.

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3.25 Another problem that plagues Indian courts is endemic delay in disposal of cases. Despite numerous judicial pronouncements on speedy justice,78 the judicial process in India is a live example of ‘justice delayed is justice denied’. Data on the number of cases pending before different courts illustrate the scale of the problem. At the end of March 2012, there were 59,816 cases pending before the Supreme Court, of which 39,356 had been pending for more than one year.79 More worrying, however, is the number of pending cases before the High Courts and lower courts. At the end of December 2011, a total number of 4,327,746 cases were pending before different High Courts and 26,986,307 before lower courts.80 It is estimated that the average time taken to dispose of civil cases is 15 years and 5-7 years for criminal cases.81 Such a backlog of cases and the consequent delay definitely puts in question the rule of law in India and mocks the judicial recognition of the right to speedy justice.

78

Hussainara Khatoon v State of Bihar, AIR 1979 SC 1364; Common Cause v Union of India, (1996) 4 SCC 33 and (1996) 6 SCC 775; All India Judge’s Association v Union of India, (2002) 4 SCC 247. 79 Supreme Court of India, ‘Court News’ (n 72) 5. The number of pending cases has gone up in the last few years from 39,780 at the end of December 2006 to 49,819 at the end of December 2008. Supreme Court of India, ‘Court News’ (October-December 2006) 6; ‘Court News’ (October–December 2008) 7. 80 Supreme Court of India, ‘Court News’ (n 72) 6–7. It is reported that about 25% of the cases pending with the High Courts have remained unresolved for more than 10 years. Centre on Public Law & Jurisprudence, Jindal Global Law School (JGLS), Justice without Delay: Recommendations for Legal and Institutional Reform (JGLS 2010) 8. 81 ‘Curb adjournments, speed up trials, SC tells trial courts’, Times of India (New Delhi, 15 May 2013) accessed 15 May 2013.

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(5) Conclusion 3.26 A brief review of constitutional provisions and judicial decisions in this chapter shows that the Indian Constitution enshrines the rule of law as a fundamental principle of governance. Apart from limiting the powers of the government, different interconnected strands of this principle not only enable people to participate in governance in a democratic set-up but also empower them to realise their full potential in diverse ways. 3.27 Nevertheless, in practice, several challenges pose a serious threat to the internalisation and institutionalisation of the rule of law in India. These challenges — such as poverty, continued socio-economic inequalities, violence against women, exclusion of lower caste people, pervasive corruption in all government institutions, endemic delay in judicial process, law and order problems in view of regionalism and Naxalism and lack of robust democratic institutions — create a chasm between the rule of law on ‘paper’ and the rule of law in ‘practice’. 3.28 One can say that building a rule of law society remains a work in progress in India. In years to come, the focus should shift to developing a culture for the rule of law82 and strengthening institutions, rather than merely introducing more rules and regulations. Improving education (including legal education) and creating more opportunities for people’s active participation in governance should help in deepening the commitment of ‘We, the people of India’ towards the rule of law.

82

Some scholars have suggested that Indians do not generally tend to follow rules. See, eg, Ananta Kumar Giri, ‘The Rule of Law and Indian Society: From Colonialism to Post-Colonialism’ in Pietro Costa and Danilo Zolo (eds), The Rule of Law: History, Theory and Criticism (Springer, 2007) 587, 605.

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The Decalogue and Sri Lankan Criminal Law: Definition of Offences as a Prerequisite for the Rule of Law Noel DIAS1 Roger GAMBLE2

(1) Introduction 4.01 We are delighted to contribute this chapter to Prof. M.G.A COORAY’s felicitation volume (Festschrit fur Prof. MGA COORAY). Professor COORAY is an erudite scholar with a genial disposition. The first-named author considers it a privilege to have been with him at the Faculty of Law, University of Colombo, while he was the Dean of the Faculty and wish him success and excellence in all his professional and personal undertakings. 4.02 It is often considered axiomatic that, as a fundamental prerequisite to the procedural norms of a criminal trial, offences themselves should be defined with reasonable precision. This is commonly related to ideas about the rule

1



2



Rev. Dr. Noel Dias, Consultant, Faculty of Law, University of Colombo. Founding editor and Editor-in-chief, Sri Lanka Journal of International Law. Roger Gamble, Lecturer, Department of Business Law and Taxation, Monash University, Australia.

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of law and the values of certainty and predictability.3 In Engel and Others v The Netherlands, (1976) 1 EHRR 647 the then Human Rights Commission adopted the following three criteria as pre-requisites to meet the fair trial guarantees under Article 6 of the European Convention on Human Rights (ECHR) and Article 14 of the Internationasl Covenant on Civil and Political Rights (ICCPR):4 1. the classification of the offence as criminal in the legal system of the respondent state; 2. the nature of the violation (i.e., the alleged conduct of the applicant); and 3. the severity of the penalty imposed or threatened.

It is in this context that we explore the substantive criminal law under the Decalogue and Sri Lankan legal system.

3



4



Since there is no perfect definition of what ‘criminal law’ means, it is a necessary element of the ‘rule of law’ that the accused must be given prior notice of what he could be made criminally liable for. The absence of clear definition of criminal law and therefore the requirement of clear identification of offences is stated by Lord Atkin in Proprietary Articles of Trade Association v A.G for Canada, [1931] AC 324 P.C: “The criminal quality of an act cannot be discerned by intuition; nor can it be discovered by reference to any standard but one: is the act prohibited with penal consequences? Morality and criminality are far from co-extensive; nor is the sphere of criminality necessarily part of a more extensive field covered by moralityunless the moral code necessarily disapproves of all acts prohibited by the state, in which case the argument moves in a circle”. The requirement of fulfilling the “Rule of Law” as a fundamental principle of democratic society is expressly referred to in the Preamble to ECHR The implication of all these statements is that an accused cannot be held criminally liable, unless he is given prior warning what the offences are, and the procedure under which he will be convicted. Engel and Others v the Netherlands, (1976) 1 EHRR 649: also, para.82 of the judgment; Engel and Others v the Netherlands, ECtHR (vol.22) 1976, p. 35: “The offences alleged against Engel,…came within provisions of the disciplinary law under the 1903 Act…although those to be answered by Dona (one of the accused),…under Art.147 of the Military Penal Code were criminal”: to the first category belonged those offences punishable by light arrest, to the other belonged those offence punishable by imprisonment.

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4.03 This article attempts to compare and contrast the Decalogue5 and Sri Lankan criminal law. We discuss the history, principles of criminal liability, punishment and defences pertaining to the Catholic penal process under the Decalogue and Sri Lankan criminal law. Then follows a brief discussion of the first, second, third, fourth, sixth and tenth commandments from a Catholic point of view, and a study of the statutory provisions and case law pertaining to Sri Lankan criminal law. Thereafter, a detailed analysis of Sri Lankan criminal law in relation to the fifth, seventh and ninth commandments is presented, preceded in each case by the salient features of Catholic doctrine on these commandments. The chapter concludes with a comparison of the two viewpoints.

(2) The Decalogue 4.04 Introduction to the Decalogue. In the Judeo-Christian tradition, the Decalogue, more commonly called the Ten Commandments,6 was given by God (Yahweh) to Moses, and contains the blueprint for an ethical life for believers in the ‘Religions of the Book’.7 The Decalogue

5



6



7



We discuss the Decalogue from the Catholic perspective. For a comparative study of Catholic and Anglican penal law see N. Dias, ‘International Fair Trial Guarantees and Penal Process: A Comparative Study’ (Ph.D Thesis, Cardiff Law School, 2004). The Ten Commandments are as follows: (1) you shall worship the Lord your God and Him only you shall serve; (2) you shall not take the name of the Lord your God in vain; (3) keep the sabbath day holy; (4) honour your father and mother; (5) you shall not kill; (6) you shall not commit adultery; (7) you shall not steal; (8) you shall not bear false witness; (9) you shall not covet your neigbour’s wife; and (10) you shall not covet your neigbour’s goods. Judaism, Islam and Christianity come within the range of the ‘Religions of the Book’. They are so called because the doctrine and morality of the believers emerge from the truths believed to be revealed by God and they are committed to a book: to the Jewish people, the Torah; Muslims, the Koran; and for Christians, the Bible.

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was summarised by Jesus Christ in the New Testament in two commandments — ‘Love of God and love of Neighbour’ — and still more summarily by one word: Love.8 4.05 Christians believe the Ten Commandments have been in effect since time immemorial and will be in effect throughout all eternity, as long as God exists. For Christians, the Ten Commandments also constitute the law of Christ, and since Christ, in Christian eyes, is the redeemer of the world, it should come as no surprise that the Ten Commandments are seen as the constitution of the universe. According to the Christian faith, God gave four different types of laws to the Israelites in the Old Testament. They were: (1) the Ten Commandments, (2) religious ceremonial laws,9 (3) health laws,10 and (4) civil laws.11 4.06 Of the first five books (the Pentateuch) of the Bible (Old Testament), some are phrased almost exclusively in legal terminology. The Decalogue is the primary source for the rest of the books in the Bible, especially law books like the Book of Deuteronomy (literally meaning the second book of law) and Leviticus, both of which contain substantial descriptions of ritual laws.

8



9



10



11



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Catechism of the Catholic Church (Theological Publications 1996) para 2055 (CCC). Christians believe that God planned from the beginning that the religious ceremonial laws would cease at the cross, because Christ, the true Lamb of God was sacrificed. According to Christians, these are laws that God gave people to keep them healthy and free from disease. These were the laws governing civil penalties for crimes within the theocracy of Israel. Many of civil laws today are based on these laws to some degree.

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4.07 While the Decalogue for the believer is essentially a revealed truth, they also have a basis in natural law, as stated in the Catholic Catechism.12 According to the Catholic Church, to attain complete and certain understanding of the requirements of the natural law, sinful humanity needed this revelation. ‘A full explanation of the commandments of the Decalogue became necessary in the state of sin because the light of reason was obscured and the will had gone astray’.13 Catholics believe they know God’s commandments through the divine revelation proposed in the Church, and through the voice of moral conscience. 4.08 Moral Responsibility and Criminal Liability in Catholic Moral Theology. In the Catholic tradition, violations of the Decalogue (and other laws largely based on it) result in loss of grace from God (a moral consideration). Some also have legal (or canonical) effects. One must at the outset draw the distinction between sin and offence (crime). Orsy captures this fine line with these words: ‘There should be a happy blend between moral theology and canon law. The danger lies when casuism or legalism becomes an obsession. Canon law is at the service of faith, hope and love. Moral theology lays the foundational study on these virtues. Hence there is no conflict’.14 4.09 The Code of Canon Law (1983)15 (1983 Code) neatly lays down the rights and obligations: first, for all Christ’s

12

14 13

15



CCC (n 6) para 2071. Iraneus, Adversus haeres, 4, 15 quoted in CCC (n 6) para 2071. Ladislas Orsy, ‘Moral Theology and Canon Law: the Quest for a Sound Relationship’ (1988) 50(1) Theological Studies 150. The 1983 Code was promulgated on 25 January 1983 by Pope John Paul II.

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faithful;16 second, for the lay members of Christ’s faithful;17 and finally, of the sacred ministers (or clerics).18 A considerable number of obligations when violated result in sin and others in offences. According to the Catholic faith, the sinner comes back to communion with the Church and God by being truly repentant and by receiving the sacrament of reconciliation.19 4.10 Those whose actions or omissions result in a violation of a canonical offence (crime), besides being repentant, need to go through a canonical process for reintegration. Crime is made up of two parts, the precept (praeceptum legis) and the sanction (sanctio legis).20 In canon law, crime has three elements:21 (1) the objective element (actus reus); (2) the mental element (mens rea); and (3) the juridical element or the prescription of the penalty. In ecclesiastical law, sins are not punishable, but sins that disturb the social order are 'crimes' and therefore punishable.22

16



17

19 18

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22



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The Canon Law Society of Great Britain and Ireland, The Canon Law: Letter and Spirit (Geoffrey Chapman 1995) Canons 208–223 (CLSGB). CLSGB (n 14) Canons 224–231. CLSGB (n 14) Canons 274–289. Misercordiam Suam, Introduction to the New Order of Penance issued by the Sacred Congregation for Divine Worship, quoted in CLSGB (n 14) para 1880. Thomas Carson and Joann Cerrito (eds), The New Catholic Encyclopedia, Vol. 4 (2nd edn, Gale 2002) 453 CLSGB (n 14) Canon 1321; John A. Alesandro, ‘Dismissal from the Clerical State in Cases of Sexual Misconduct: Recent Derogations’ (Canon Law Society of America 1994) 59; Rocca (n 20) 583. Separation of sin and crime is attributed to Peter Abelard. See W. Cole Durham, Jr., ‘Religion and Criminal Law: Types and Contexts of Interaction’ in John Witte, Jr. and Frank S. Alexander (eds), The Weightier Matters of the Law: Essays on Law and Religion: A Tribute to Harold J. Berman (Scholars Press 1988) 224–225; C. G. Weeramantry, The Lord’s Prayer: Bridge to a Better World (Liguori Publications 1998) 71–72 neatly brings out the paradox between morality and legality.

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4.11 The 1983 Code uses the term ‘offence’ (without expressly defining what offence means) instead of crime, whereas the 1917 Code used the term ‘crime’ or ‘delict’.23 The 1917 code carefully distinguished penal action from civil action by stating: ‘From a delict there arises: 1. A penal action for the declaration of infliction of a penalty and for seeking satisfaction; 2. A civil action for the repair of damages, if someone was damaged by delict’.24 It goes on to state further: ‘In either case … the same judge in the criminal trial can, at the request of the injured party, convoke and decide the treatment of the civil action’.25 Although the 1983 code does not use the term ‘crime’, the principles applicable in the old code are applicable mutatis mutandis to the 1983 code as well. 4.12 Penal Sanctions in General. There are three broad theories of punishment: retributive, preventive (deterrence) and reformative.26 4.13 Criminologists generally agree that the retributive model is based on the ancient laws of Moses and Hammurabi and

23



24



25



26

Canons 2195–2213 of the 1917 Code come under the subtitle ‘Crimes and Penalties in General’. See Bouscaren, T. L., & Adam, C. E., Canon Law, A Text and Commentary, published by The Bruce Publishing Company, Milwankee, USA, (2nd edition), 1951 [This is a commentary of the 1917 code] 1917 Code, Canon 2210(1). There is no comparable provision in the 1983 Code. 1917 Code, Canon 2210(2). Babafemi Odunsi, ‘When Prisons Become Breeding Grounds and Warehouses for HIV: A Paradox of Criminal Law Intervention to HIV/AIDS Control in Developing Countries’ (2010) 22(1) Sri Lanka JIL 31, 34; Cathy Cobley, Sex Offenders: Law, Policy and Practice (2nd rev edn, Jordan Publishing Ltd 2005).

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its proponents include Immanuel Kant,27 who insisted that absolute justice demands that the last penny of damage must be repaid.28 4.14 The preventive (or deterrence) model is associated with legal positivists who espouse the utilitarian theory, which promotes maximum pleasure to the greatest number. The offender is incapacitated or prevented from committing offences again. 4.15 The reformative model is based on the supreme norm of love (for God and man) espoused by religions according to which the ‘supreme law is the salvation of souls’.29 Justification for punishment lies in the underlying aim of reforming the individual so that he can be integrated back to the society as useful person. 4.16 In recent times, a fourth theory known as ‘restorative justice’ theory30 has been discussed. It offers a process whereby those affected by criminal behaviour — victims, offenders, the families involved or the wider community — have a part in resolving the issues that flow from the offence.31 4.17 Penal Sanctions in the Catholic Church. Canonical sanctions are either penal or non penal. The sanctions that

27



28



29

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31



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Stephen Palmquirst, ‘Four Perspectives on Moral Judgment: The Rational Principles of Jesus and Kant’ (XXXII) (1991) 32(2) The Heythrop Journal 216. Odunsi (n 24) 35. Mc.Grath, J., A Comparative Study of Crime in Ecclesiastical Criminal Law and in American Criminal Law, CLS No.385, 1957 Jim Consedine, ‘The Third Millenium: Restorative Justice or More Crime and Prisons’ (1999) 11(1) Sri Lanka Journal of Int’l Law 1. Consedine (n 28) 2.

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are ‘penalties’ include: (1) censures or medicinal penalties; and (2) expiatory penalties. According to Alesandro,32 penal remedies and penances (though they are so named), in fact are not strictly penalties. The 1983 Code, in Titles I–VI, indicates determinate sentences for specific offences; only under Title VII is the penalty indeterminate. Some examples of non-penal sanctions are nullity of marriages due to the absence of consent or form and laicisation (secularisation) due to non-procurement of dimissorials (testimonial letters given by a religious superior testifying that the subject of the letter has all the qualities demanded by canon law for the reception of the order in question, and requesting the recipient to ordain him).33 4.18 Censures or medicinal penalties include excommunication, interdicts and suspensions. Excommunication is the most severe of the censures, and affects only physical persons, be they clerics or laypersons. It amounts to a civil death (Canon 1312). Interdicts deprive the faithful of some spiritual benefits but not of the communion with the Church (Canon 1333(1)). Suspensions affect only clerics. Those under suspensions may be forbidden to exercise all or some acts of the power of orders, governance, rights or functions (Canon 1333(3)).34 4.19 Expiatory penalties are set out in Canon 1336(1): (1) prohibition against residence (an order restricting residence in a certain place); (2) deprivation of power, office etc.; (3) prohibition of the exercise of power, office, etc.; (4) a penal transfer to another office; and (5) dismissal from clerical state.

32

34 33

Alesandro (n 18) 59. See Rocca (n 19) 538, for the meaning of spiritual and temporal penalties. See Elgius George Rainer, ‘Suspension of Clerics: An Historical Synopsis and Commentary’ (1937) 111 Canon Law Studies 58–112.

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4.20 Defences in Catholic Penal Law. The defences against prosecution are laid out in Book VI, Title III of the Code, in Canons 1331–1340. The line of defence can follow this order: the defence must first challenge the existence of the canonical provision constituting the offence of which the accused is charged.35 If that fails, then it moves to challenge the existence of the external violation.36 If both have failed, then the defence moves to challenge the existence of the imputability.37 4.21 The following general defences also can be invoked to show the absence of imputability: habitual lack of the use of reason, such as insanity;38 minority (under 16 years of age);39 ignorance; error; duress; and self-defence. 4.22 Besides the above stated grounds of exculpation,40 there are defences that mitigate the penalty. Mitigating circumstance

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These three constitutive elements of an offence are identified by the 1917 Code in Canons 2199, 2203(1) and 2229(3). External violation means the actus reus or the objective element, meaning an expression that is verifiable by evidence. Thus, for example, an heretical thought unexpressed cannot constitute an offence. See CLSGB (n 14) para 2641, p. 754. Imputability means either malice or culpability. Malice is the deliberate intention of violating the law. Culpability means omission of due diligence, i.e., the law or precept was violated through culpable ignorance or neglect of legal responsibilities. See CLSGB (n 14) para 2642, p. 754. Canon 1322. The current law stands in distinct contrast to the 1917 Code, Canon 2201. In the old code, a distinction was made between those who are ‘actually lacking in reason’ and those who are ‘habitually lacking in reason’. This distinction is not found in the new code. deaf-mute. Canon 99 deals with infants who are under seven years of age, who in law are presumed to be exempt from all personal responsibility. The equivalent in the 1917 Code is Canon 88(3). See, Innocent Robert Swoboda, ‘Ignorance in Relation to the Imputablity of Delicts’ in (1941) 143 Canon Law Studies. Canon 1324. See Bouscaren (n 21) 873 and Stenson (n 34) 414: ‘In these ten circumstances, the delinquent is exempted from latae sententiae penalties and deserves mitigation of other penalties’.

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include imperfect reason, drunkenness, provocation, right to self-defence, grave fear, diminished responsibility, and error. However, crass, deliberate ignorance and drunkenness are not valid grounds as defences.

(3) Sri Lankan Criminal Law 4.23 A Brief History of Sri Lanka Criminal Law. Substantive41 criminal law is largely contained in the Penal Code 1863, a comprehensive statute modeled on the Indian Penal Code. Sri Lanka (formerly called Ceylon) was under three colonial powers: Portuguese, Dutch, and British. The first did not establish either civil or criminal law. The Dutch left Roman Dutch law in civil matters as the common law, but its criminal law was short lived. 4.24 In 1796, Ceylon was captured by the British. In time, the entire island became a colony of British. Throughout the 19th century, a considerable body of English legal principles became incorporated in the criminal law of Ceylon by express enactment and by judicial activism of English judges. By the end of the 19th century, English criminal law had taken a firm hold in Sri Lanka as stated by Burnside in John MENDIS: No direct expression of Sovereign will or express legislation can be found declaring English criminal law in force (in Ceylon)…(however) there had been a steady current of legislation recognizing the existence of offences as known as the Common

41



Substantive law is distinguished from procedural law. The latter is contained in the Criminal Procedure Code, which was replaced by the Administration of Justice Law 1973. The present law, the Criminal Procedure Code Act 1979 repealed the 1973 law.

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Law and Statute Law of England, as well as direct legislation imposing punishment for such offences.42 4.25 Today Sri Lankan criminal law consists of: (i) English criminal law as found in the Penal Code and several statutes that came to Ceylon either by prerogative power of the British Sovereign or by statutes passed by the British Parliament; (ii) judicial decisions very much influenced by English criminal law; and (iii) statutes passed by the legislature of independent Sri Lanka. 4.26 Principles of Criminal Liability. A crime is comprised of two basic elements: actus reus and mens rea. 4.27 Actus Reus. Actus reus represents the physical effect of human conduct prohibited by the law. According to Turner, the actus reus involves three elements: (a) human action or abstention from action; (b) such circumstances as are specified by law; and (c) the result of this conduct in these specified circumstances.43 4.28 Since the criminal law of Sri Lanka is wholly statutory, specific provisions identify the relevant actus reus. For the offence of assault, the relevant actus reus is: ‘any gesture or any preparation intending or knowing it to likely that gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force’. Implicit in actus reus is the requirement of voluntary conduct. Thus, pure accident does not amount to actus reus. In the Fernando case,44 it

42



43

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John Mendis, (1883) 5 Supreme Court Circular 186 at p. 188. Peiris, G. L., General Principles of Criminal Liability in Sri Lanka, pub. Stamford Lake, Sri Lanka,1999, p. 12. Fernando v Queen (1954) 56 NLR 228.

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was held that a person who is steering a motor vehicle while it is being towed is not driving at all. Thus if any mishap occurs, he is not committing any criminal act. 4.29 In a case where the accused’s conduct itself is severable in sequence from the effect caused by the conduct, the law requires a sufficient causal nexus between the antecedent conduct and the alleged effect. Conduct envisages not only an act, but in some contexts, an omission as well. When a person omits to do his legal duty, he may be criminally liable. For instance, in the Pittwood case45 the gatekeeper who left the railway gate open was convicted of manslaughter. 4.30 Mens Rea. In Sri Lanka, elements of all crimes, including mens rea, are statutorily defined. Certain statutory definitions of mens rea include intention, rashness or negligence. 4.31 Besides these, mens rea is also expressed by terms such as malice,46 dishonesty,47 wilfulness,48 falsehood,49 and the like. 4.32 Punishments in Sri Lankan Criminal Law. The Penal Code of Ceylon provides several punishments for offences. They are: death, rigorous or simple imprisonment, whipping, forfeiture of property and fine.50

45

47 48 49 50 46

R v Pittwood case (1902) 19 Times LR 37. Penal Code, s 150 (in the offence of riot). Penal Code, s 366 (theft and related offences). Penal Code, s 289 (willful neglect of official duty). Penal Code, s 208 (institution of false charges). Penal Code, s 12.

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4.33 In keeping with modern trends of criminology,51 Sri Lanka introduced suspension of sentences52 and community service orders.53 4.34 Defences in Sri Lankan Law. Sri Lankan law provides for general defences listed in Part IV of the Code (Sections 69– 99). Besides these defences, there are also special defences listed under particular offences, as in the case of murder (Section 294).54 4.35 Following are general defences: mistake of fact (Sections 69–72); acts of judicial officers (Sections 73–74); acts of children under 8 years and 12 years respectively (Sections 75–76); acts of persons who are insane or intoxicated (Sections 77–78); acts done in good faith (Sections 80–86); acts under duress (Sections 87); and acts done in private defence (Sections 89–90). 4.36 Mistake of fact goes into negating or minimising mens rea of the offence. It is mistake of fact and not law that is a defence. The presumption is that all men know the law (Section 69). When there is a mistake of fact, the accused’s conduct is not morally blameworthy. The basis of exculpation relates to cognition (Section 72). In Medaduka v Muttucaruppan,55 the court held that a fraudulent intention on the part of the accused must be proved. The court expressed the view that the English law as to mens

51 52

53 54

55





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See paragraphs 12–15 of this chapter. The Criminal Procedure Code Act (No. 15 of 1979), as modified by the Code Of Criminal Procedure (Amendment) Act (No. 47 of 1999), Section 2, which replaced Sections 303 and 304 of the parent Act. The Criminal Procedure Code (Amending) Act (No. 49 of 1999). A special right of private defence under murder occurs in Section 294. This will be discussed under the subtitle murder and homicide. Medaduka v Muttucaruppan (1923) Times LR 239.

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rea was no longer applicable in Ceylon and the exemption created by Section 72 of the Penal Code must be held to apply to statutory offences of this kind, where there is no express provision in regard to intent or knowledge. 4.37 With regard to the defence of insanity, Section 78 of the Penal Code contains a summation of the celebrated English Court decision in the M’ Naghten case.56

(4) Love of God: First, Second and Third Commandments 4.38 First Commandment: Catholic Teaching. The First Commandment is ‘You shall worship the Lord your God and Him only shall you serve’. The Book of Exodus 20/2– 5 gives a longer version: ‘I am the Lord your God who brought you out of Egypt … you shall have no other gods before you’. 4.39 The uninterrupted teaching of the Church under the first commandment is to worship Yahweh the Lord. This commandment embraces the theological virtues of faith, hope and love. 4.40 Offences connected with the First Commandment are: heresy,57 apostasy,58 and schism.59 All these incur an excommunication latae sententiae.

56



57

58



59



M’ Naghten’s Case (1842) 10 C & F 200. CLSGB (n 14) Canon 751 (para 1507): Heresy has two elements: (i) obstinate denial or doubt, which means even after warnings had been given, persists in error; (ii) the subject matter of doubt is a ‘truth of faith’. CLSGB (n 14) Canon 751 (para 1508). Apostasy is a total denial of Christian faith received at Baptism. Joining another sect of Christianity. CLSGB (n 14) Canon 751 (para 1509). Schism is breaking the bond of unity with Christ and His Church. There is a repudiation of Church’s teaching authority.

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4.41 Second Commandment: Catholic Perspective. The Second Commandment reads, ‘You shall not take the name of the Lord in vain’. 4.42 Positive demands of this command are to respect God’s name and witness to His message. Preaching and catechising should be permeated with adoration and respect for the name Lord Jesus Christ.60 4.43 Blasphemy is directly opposed to this commandment. It consists of uttering words of hatred, reproach and defiance against God. This is a grave sin and offence under Canon law and incur a just penalty.61 4.44 Perjury is both a sin and violation of canonical obligations. Canon law states: ‘An oath is the invocation of the divine name as witness to truth. It cannot be taken except in truth, judgment and justice’.62 Violation of an oath is sinful although no canonical penalties are indicated. 4.45 The Third Commandment: Catholic Perspective. The Third Commandment reads, ‘The Seventh day is a Sabbath of solemn rest, holy to the Lord’. 4.46 The positive obligation under this command is to observe Sunday obligations. Taking part in the Holy Eucharist and observing Sabbath rest, reading religious texts and spending more time with the family are canonical (legal) obligations. Violations are a matter for confession (internal forum).63

60

62 63 61

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CCC (n 6) paras 2142, 2145. CLSGB (n 14) Canons 226(2) and 1369 (paras. 476 and 2742). CLSGB (n 14) Canon 1199 (para 1509). CLSGB (n 14) Canon 1247–9 (paras 2466–2467).

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4.47 Sri Lankan Criminal Law: First, Second and Third Commandments. There are no criminal sanctions under Sri Lankan law for the violation of Sabbath obligations. 4.48 Duties under the First and Second Commandments may be assessed together. There are four sets of provisions dealing with offences against religion: (i) Offences against places of religious worship (Section 290 of the Penal Code).64 In the case of Mudali v Sebastian,65 the person who scribbled indecent pictures and writing with charcoal was convicted under this section; (ii) Disturbance in a religious assembly.66 In Sub Inspector of Police, Bentota v Zoysa,67 there was a procession of monks performing a pirith ceremony. The accused struck some members of the procession and threatened them if they proceeded with the ceremony. The Court strictly interpreted the words in the provision and stated, ‘this disturbance had not taken place within the religious ceremony’; (iii) Uttering words with an intent to wound religious feelings;68 and (iv) Trespassing burial grounds and offences connected with funeral.69

(5) Love of Neighbour: Fourth Commandment 4.49 Fourth Commandment: Catholic Perspective. The Fourth Commandment is ‘Honour your father and mother’.

64



65



66

67

69 68

Penal Code, s 290: ‘Any person destroying, damaging or defiling a place of worship … [or] sacred object … is punishable with imprisonment for two years and/or fine’. Mudali v Sebastian (1898) 4 Bal. rep 133. Penal Code, s 291: ‘whoever voluntarily cause[s] disturbance in any assembly lawfully engaged in the performance of religious worship … is said to have commit the offence’. Punishment is one year’s imprisonment with or without a fine. Sub Inspector of Police, Bentota v Zoysa (1921) 23 NLR 125. Penal Code, s 291B. Penal Code, s 292.

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4.50 The first three commandments of the Decalogue pertain to the love of God. The fourth commandment is the first under the ‘love of neighbour’. The positive demand of this command is to take care of one’s family (which is the unit of society), and the society at large. 4.51 Parents have a duty to educate and foster spiritual formation.70 It is also a canonical duty placed upon the parents.71 Children are obliged to obey their parents and support them in old age, and times of distress. Filial respect also imposes the duty to foster fraternal relationships among siblings. 4.52 In the Catholic tradition, every person as a citizen one’s state has a duty to look up to the civil authorities representatives of God and carry out all laws as long they are not against God’s law.72 They are also bound obey the Church and her authorities.73

of as as to

4.53 Sri Lankan Criminal Law and the Fourth Commandment. There are no penal provisions governing rights and duties of parents versus children and vice versa. However, under civil law (not treated in this chapter), duty of support is paramount. Not only the parents but children too are legally bound to support their elderly and feeble parents when the situation demands.

70

72 73 71

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CCC (n 6) paras 222–2231. CLSGB (n 14) Canon 793 (para 1569). CCC (n 6) paras 2238, 2242. CLSGB (n 14) Canon 212(2) (para 443).

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4.54 Under the Prevention of Domestic Violence Act (No. 34 of 2005), a party who is a victim of violence within a family can seek a protection order from the court. The Act itself does not provide penal remedies. However, all acts of domestic violence (other than those of emotional abuse of adult persons) are in fact criminal offences under the Penal Code and the police should act in such circumstances as they would in the case of any other offence.

(6) Sixth and Ninth Commandments 4.55 Catholic Teaching on the Sixth and Ninth Commandments. The Sixth Commandment is ‘You shall not commit adultery’ and the Ninth Commandment is ‘You shall not covet your neigbour’s wife’. The positive demands of these two commandments are to maintain purity and integrity of body and soul. The two commands relate to sexuality, which affects all aspects of the human person. These commands deal with affection, capacity to love and procreation. Ultimately it is sexual union that enables building up of the community and maintaining the survival of the human species. 4.56 The Sixth Commandment prohibits lust, masturbation, fornication, pornography, prostitution and rape.74 The Ninth Commandment deals with the attitude towards sex and marriage. 4.57 Canon law deals with the sacrament of marriage extensively.75 There are no penal provisions relating to

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75

CCC (n 6) paras 2351–2356. CLSGB (n 14) Bk IV Title VII Canons 1063–1165.

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sexuality. However, persistent infidelity may be a ground for nullifying a marriage.76 4.58 Sri Lankan Criminal Law: Sixth and Ninth Commandments. Sri Lankan criminal law punishes almost all sins under the Sixth Commandment, except masturbation. 4.59 Rape77 is a grave offence, which may result in 20 years’ imprisonment without a fine. Act No. 22 0f 1995 amended Section 363 of the Penal Code to read: ‘with or without the consent when she (girl) is under sixteen years of age’. Thus, a male, if proved to have sex with a girl under 16 years of age, is liable for rape, except when the male person is a Muslim. 4.60 Bigamy78 is an offence that can result in a seven-year prison sentence. 4.61 Unnatural offences79 and homosexuality80 are offences in Sri Lankan law. The first carries a 10-year prison term and the latter a two-year prison term.

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CLSGB (n 14) Canon 1095. Lack of due discretion is one of the ground for nullity of marriage. A person who is persistently unfaithful lacks due discretion. Penal Code, s 363 provides: A man commits rape when he has sexual intercourse with a woman by one of the following ways: (1) against her will; (ii) without her consent; (iii) consent extracted by putting fear of death or serious injury; (v) when that man pretends to be the husband. Penal Code, s 362 B provides: ‘Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment for a term of seven years’. Penal Code, s 365: ’carnal intercourse against the order of nature with any man, woman or animal … is guilty of an offence’. Penal Code, s 365A.

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(7) Fifth Commandment 4.62 Prohibition on Killing according to Catholic Teaching. The Fifth Commandment is ‘Thou shall not kill’.81 4.63 Prohibition on Murder. The Fifth Commandment forbids direct and intentional killing as gravely sinful. The murderer and those who cooperate voluntarily in murder commit a sin that cries out to heaven for vengeance. The moral law prohibits exposing someone to mortal danger without grave reason, as well as refusing assistance to a person in danger.82 4.64 Intrinsic reasons for the sinfulness of murder are:83 (i) The owner and master of all human life is God — so no person can take away another human life;84 (ii) life is the highest temporal good of man indispensable for his earthly existence; and (iii) welfare of society demands the protection of human life. 4.65 Murder per se is not a canonical offence. However, it is an impediment for Holy Orders.85 Conjugicide (that is, killing or attempting to kill a spouse) is an impediment for the subsequent marriage.86

81

83 82

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86

Book of Exodus 20/13. CCC (n 6) para 2268. K. H. Peschke, Christian Ethics: Moral Theology in the Light of Vatican II (Theological Publications 1992) 305. Book of Genesis 4/10 (‘your brother’s blood is crying to me’); Book of Exodux 20/13; Deuteronomy 5/17. CLSGB (n 14) Canon 1040. CLSGB (n 14) Canon 1090.

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4.66 Prohibition on Suicide. In the Catholic tradition, suicide is immoral because first, God is the author of life. Thus, even one’s own life does not belong to the individual. (However, some moralists think that one may lay down one’s life for a higher purpose; e.g., saving the community from destruction.)87 Second, suicide is a crime against a person’s obligations towards the community and his dependents. Third, suicide is a violation of one’s duty to love oneself and strive for perfection.88 4.67 As in the case of murder, suicide per se is not a canonical offence, but is an impediment for holy orders.89 4.68 Abortion. In the Catholic tradition, human life must be respected and protected absolutely right from the conception, which is the first moment of a person’s existence. Thus the fetus is recognised as having the rights of a human person, among which the foremost inviolable right is the right to life. 4.69 All through the centuries, the Church has affirmed the moral evil of every procured abortion. This teaching has not changed and remains unchangeable. Direct abortion —  that is to say, abortion willed either as an end or a means — is gravely contrary to the moral law.90 Pope John Paul II in his Encyclical, Evangelium Vitae, has affirmed in

87



88

90 89

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Lisa Sowle Cahill, ‘Respecting Life and Causing Death in the Medical Context” (1985) 179(3) Concilium 37. Peschke (n 94) 300. CLSGB (n 14) Canon 1040, number 5. CCC (n 6) 2271.

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no uncertain terms the sinfulness of procured abortion and being an accomplice in this act.91 4.70 ‘A person who actually procures an abortion incurs a latae sententiae excommunication’.92 The only defence to procurement of abortion is when a surgical intervention is done to save the mother (as in the case of necessary removal of cancerous tissue) and the fetus dies as an unforeseen side effect. This is called the principle of Double Effect. Direct killing of a fetus is an offence. An unsuccessful attempt to expel the fetus from the womb or to kill the fetus in the womb, although gravely sinful, does not incur an excommunication.93 4.71 Sri Lankan Law Pertaining to Killing. Like the Catholic teaching, Sri Lankan criminal law holds that there are various forms of killing. This study confines itself to homicide, murder and abortion. 4.72 Homicide and Murder. Homicide is defined in Section 293 of the Penal Code as ‘(i) Whoever causes death by doing an act with the intention of causing death; or (ii) with the intention of causing such bodily injury as is likely to

91



92



93

‘Normally it is the mother who makes the decision to abort the foetus. In the first place, the father of the child may be to blame not only when he directly pressures the woman to abort but indirectly encourages such a decision. Doctors and nurses are also responsible when they place at the service of death skills which were acquired for promoting life. Responsibility likewise falls on the legislators who have promoted and approved abortion laws’. Pope John Paull II in Evangelium Vitae, quoted in CLSGB (n 16) para. 2827. CLSGB (n 14) Canon 1398. CLSGB (n 14) para 2826.

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cause death, or (iii) with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide’. 4.73 Intention to Murder. As shown above, Section 293(i) matches Section 294(i). Both instances refer simply to ‘intention to kill’ as the mens rea of both homicide and murder. In Bastian Silva v Appuhamy,94 the accused, after abusing another and tearing out some of victim’s hair, followed him some distance as he was walking towards a courthouse and deliberately stabbed him in the back, causing a wound 2 ½ inches deep and 4 inches long. He later stabbed three other persons who tried to arrest him. The court found intention requisite for murder was present. 4.74 Intention to Cause Grievous Bodily Injury. The intention contemplated by Section 293(ii) is intention to cause bodily injury as is likely to cause death. Whereas Section 294(ii) involves an intention to cause bodily injury that the offender knows is sufficient to cause death in the normal course of events. This is knowledge special to the offender. For instance, if the accused knows that the victim is a haemophiliac (one who has a congenital tendency to uncontrolled bleeding) and causes a simple injury, the accused could be convicted for murder. 4.75 Section 294(iii) differs from Section 294(ii) by the fact that injury caused by the offender in normal course of events would cause death (eg, deep stab into the heart of the victim).

94



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Bastian Silva v Appuhamy (1900) 4 NLR 47.

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4.76 Comparing Section 293(ii) and Section 294(iii) shows that the latter requires a stronger and more definitive intention. This is well illustrated in the case of Mendis,95 where the evidence indicated that toxaemia resulted from a compound fracture, which was a result of a club injury inflicted by the accused. The blow shattered the bones in the leg of the injured man, who collapsed into a stream and later died of toxaemia. The Court of Criminal Appeal held ‘that the injury inflicted by the accused although “likely to cause death”, was not “sufficient in the ordinary cause of nature to cause death”’. Accordingly, a conviction of culpable homicide not amounting to murder was entered. 4.77 Knowledge that Death may Ensue. Sections 293(iii) and 294(iv) refer to knowledge as the requisite mens rea. In the latter, knowledge requisite for murder is not mere knowledge but ‘knowledge that [the] offender’s act is so imminently dangerous that it must in all probability … result in death or such bodily injury as is likely to cause death’. Illustration (d) in 294 makes this position quite clear: a person who blindly shoots into a crowded road has the knowledge required to make him liable for murder. This is a good example of recklessness. Thus, even though the offender has no premeditation to kill anyone in particular, he has the requisite mens rea for murder. 4.78 In the case of Dias,96 the prosecution canvassed for a conviction for murder on grounds of knowledge. The facts were as follows. Over a land dispute, the accused wanted to shoot the deceased with a revolver, which did not fire. Then he snatched a gun from someone in his party and

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96

Mendis (1952) 54 NLR 177. Dias (1905) 8 NLR 252.

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without bringing to the shoulder, fired when the deceased was standing a few feet from the muzzle. A fatal wound was inflicted on the chest. In the appeal, the judge said, ‘By our law, culpable homicide is not limited to cases where a person causes death with intention of killing … but includes the case in which a person does the act with knowledge that by such act he is likely to cause death … I am bound to assume … that [the] accused acted with knowledge that the gun was loaded. On the facts, the knowledge imputable to the accused was merely of the lesser kind required by limb (iii) of sec.293 and therefore suffered only for a conviction of culpable homicide not amounting to murder.97 4.79 Defences against Murder. There are five exceptions wherein murder is reduced to culpable homicide not amounting to murder. They are: (i) sudden and grave provocation; (ii) right of private defence; (iii) public officer or one who aids a public officer; (iv) killing in a sudden fight where there is no premeditation; and (v) killing by the mother of a baby under 12 months after her childbirth or during lactation. 4.80 Sudden and Grave Provocation. Not any provocation suffices for mitigation of murder; it must be sudden and grave. ‘Sudden’ implies that there should be close proximity in time between the acts of provocation and retaliation. If the murder had taken place after a ‘cooling off’ of temper, then this defence is not available (K.D.J. Perea case).98 A husband who saw his wife intimate with her paramour had the advantage of this defence in the Ram Banda case.99

97

99 98

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Ibid. p.259 K.D.J. Perea (1951) 53 NLR 193. Ram Banda (1949) 40 CLW 33.

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4.81 Provocation must be grave to merit the benefit of the exception. The Sri Lankan courts have been at variance on whether the test of provocation should be objective or subjective. Even abusive words can provoke gravely. In Kirigoris, it was stated: ‘The jury were not definitely instructed that mere abuse may in certain circumstances be regarded as sufficient provocation’.100 4.82 Right of Private Defence. In Sri Lankan law, right of private defence is a special exception for murder under Section 294 and a general defence under Sections 38(2) and 90. 4.83 The second exception to Section 294 provides: ‘Culpable homicide is not murder, if the offender, in the exercise of right of private defence … in good faith exceeds the power given to him by law and causes the death of the person against whom he is exercising such right’. 4.84 If there is proportionate use of force to retaliate against an aggressor, the right to private defence can be a complete defence. In Muttu’s case, the Appeal Court judge said: ‘there were miss-directions [sic] to the jury in vital matters such as the distance at which the fatal shot was fired … which had an immediate bearing on the question. Had the correct facts been put to the jury, we think they may well have considered that the accused had justification for firing as he did … The conviction of murder [was] quashed and the accused was acquitted in appeal, on the ground that he had acted entirely within the right of private defence’.101

100

Kirigoris (1947) 48 NLR 407. Muttu’s case (1946) 47 NLR 516.

101

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4.85 Abortion in Sri Lankan Law. Section 303 of the Penal Code provides: ‘Whoever voluntarily causes a woman with child to miscarry unless the miscarriage be not caused in good faith for the purpose of saving life of the woman, [shall] be punished with 3 years imprisonment of either description or with a fine or both; and if the woman be quick with child,102 with a 7 year prison sentence or with a fine or both’. 4.86 A significant feature of Section 303 is the burden of proof in regard to the element that miscarriage was not caused ‘in good faith for the purpose of saving the life of the woman’. This is an element of the crime and the prosecution should discharge the burden of proving beyond reasonable doubt. 4.87 The rationale underlying this element of the offence was explained by the trial judge to the jury in the Waidyasekara case: ‘You have to consider carefully whether the circumstances arising from the performance of the act were intended to save the life of the mother. If there were such circumstances, the law allows the sacrifice of one rudimentary life to save another comparatively more valuable’.103 4.88 Section 304 deals with an abortion procured without the consent of the mother. The punishment is 20 years’ imprisonment. 4.89 Section 305 criminalises a person who causes the death of the mother in attempting an abortion. The punishment is 20 years.

102

‘Quick with child’ means that the mother can feel the movement of the foetus (generally 15 or 16 weeks after conception). 103 Waidyasekara (1955) 57 NLR 202.

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(8) Seventh and Tenth Commandments 4.90 Theft in Catholic Teaching. The first commandment refers to activity, the other to one’s attitude or mindset. The seventh commandment (‘Thou shall not steal’) prohibits unjust taking or keeping the goods of one’s neighbour and wronging him in any way with respect to his goods. It commands justice and charity in the care of earthly goods and the fruits of men’s labour. For the sake of common good, it requires respect for the universal destination of goods and respect for the right to private property.104 4.91 According to the Catholic tradition, the Tenth Commandment forbids coveting neighbour’s goods (‘Thou shall not covet … anything that is your neighbour’s … his house, his field or his man servant or maidservant’).105 In that sense, while the Seventh Commandment prohibits unjust appropriation of neighbours’ goods, the Tenth Commandment prohibits the mindset of covetousness regarding neighbours’ goods. 4.92 In traditional moral theology, property was thought to be an absolute right of an individual (much resembling the concept of private property in the capitalist ideology). Today, moral theologians look at it from a social (community view).106

104

CCC (n 6) para 2401. CCC (n 6) para 2353. 106 Pope Paul VI, Populorm Progressio: Encyclical of Pope Paul VI on the Development of Peoples (26 March 1967) para 23 accessed 28 June 2013. 105

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4.93 In the Old Testament, material wealth was considered a blessing.107 In the New Testament, wealth can be a barrier to holiness.108 However, the two can be reconciled. Wealth received and administered as a gift of God is praiseworthy. 4.94 The Seventh Commandment prohibits violation of property rights, which consists of: (i) Unjust damages, meaning the violating of property of another in some unjust manner without gaining advantage.109 (ii) Fraud.110 This is the unjust appropriation of goods of another under the guise of a right, usually in some form of contract. Scripture chastises fraud (false weights).111 (iii) Theft.112 This is secret appropriation of what belongs to another against his reasonable will. 4.95 Theft in Sri Lankan Criminal Law. What is commonly called theft and expressed in the Seventh Commandment is stated in the Penal Code mainly113 under Chapters XVII as ‘Offences against Property’ (Sections 366–433), and Chapter XVII as ‘Offences Relating to Documents, Property, Property Marks, Currency Notes and Bank Notes’ (Sections 462–478). The two chapters span 93 sections. This study is confined to two sections of the Penal Code: theft (in the technical meaning of Section 366) and robbery (Section 379).

107

109 110 111 112 113 108

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Genesis 24/34; Proverbs 10/22. Luke 6/24; Mark 10/23-27. Peschke (n 94) 697. Peschke (n 94) 698. Deuteronomy 25/13-16. Peschke (n 94) 701. Corporate fraud, insider trading, etc. comes within the Seventh and Tenth Commandments, cannot be brought under these provisions of the Penal Code.

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4.96 Theft under the Penal Code. One who commits theft is defined in the Penal Code (Section 366) as: ‘Whoever, intending to take dishonestly any movable property out of the possession of any person without that person’s consent, moves that property in order to [effect] such taking, is said to commit theft’. 4.97 The components of the offence are the following: (a) the property in question must be movable property; (b) there must be a moving of property by the accused in order to effect the taking of such property; (c) the property must be moved out of the possession of another; (d) the moving of the property must have been done without the consent of the person possessing the property; and (e) the accused must have had the intention of taking the property dishonestly. A brief explanation to these aspects of the offence follows. 4.98 Movable property in Section 20 of the Penal Code is defined as: ‘corporeal property of every description except land or things attached to the earth’. 4.99 To constitute the offence of theft, the third component (item (c) in the above list), possession (and not ownership) is what is required. The latter consists of the power of possession (uti), enjoyment of fruits (fruendi) and alienation (abutendi). To constitute the offence, only the first component is needed. 4.100 Item (d) in the list of elements of theft necessitates that the thief must do so without the consent of the one who possess the movable item. Consent may be explicit or implicit and can be given by the possessor or one who has been legally authorised by the possessor.

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4.101 The final item (e) refers to the mens rea of theft, which is dishonesty. This is defined in Section 22 of the Penal Code as: ‘intention of causing wrongful gain to one person or wrongful loss to another’. Wrongful gain is defined in Section 21(1) as: ‘gain by unlawful means [to] which the person gaining is not legally entitled’. Wrongful loss is the opposite of it. 4.102 The prosecution, in order to establish the elements of dishonesty, must observe the following steps: (i) the prosecution has only to establish either wrongful loss to one or wrongful loss to another, not both (ii) if the accused has some other intention than causing wrongful loss or wrongful gain, the prosecution will fail;114 (iii) it is sufficient that the prosecution establishes a temporary deprivation of the movable property; (iv) moving away property by the accused with the intention of causing annoyance to the possessor does not establish the requisite mens rea for theft; and (v) imputability of bona fides to the accused negates a dishonest intention.

(9) Comparison between the Decalogue and Sri Lankan Criminal Law 4.103 Comparison based on General Consideration. The Catholic Penal Law, based on the Decalogue, is primarily contained in the code of Canon Law 1983. The Decalogue is nearly three thousand years old and the Catholic Canon Law is nearly two thousand years old. Once the Church became the religion of the Roman Empire, the distinction between

114

In Sinnan Nakandy Sultan 1880 3 SCC 13, the accused snatched some clothes from the washman, since the latter was delaying delivery of washed clothes of the accused.

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internal forum (penitence, conscience and reconciliation with God and the Church) and external forum (courts, their jurisdiction and administration of criminal justice) was clearly maintained. The first systematic code was that of Gratian. It was revised in 1917 after the 1st Vatican Council, and its current incarnation is the presently operating 1983 Code of Canon Law. 4.104 Comparison based on History. Sri Lankan Criminal Law, codified in 1898 as the Penal Code, is operative today. Prior to that, the Dutch rulers administered criminal justice through the Governor. The General Council in Batavia passed placaates_(statutes) subject to the final authority of the Staat General (Body of 17 Members). The Portuguese administered criminal justice. Governor Ceylon (then) represented the monarch of Portugal. Prior to 1505 (the year Portuguese arrived), the king rules as Fons Justitiae and delegated power to the ministers (Adigars) and minor officials. Punishments, including deaths and cruel tortures, were imposed depending on the nature of the crime. 4.105 Comparison based on Principles of Criminality. Both in the Catholic Church and Sri Lankan criminal law, the constituents of crimes are the same. The constituents are: actus reus, mens rea and penal sanction. The remarkable difference is that in Canon Law, every offence operates within two fora, internal and external. There are some infractions of the Decalogue or Canon Law that result in sin and hence are confined to the internal forum (or conscience). The Church provides for the Sacrament of Confession by which a sinner can reintegrate with society. The 1983 Code of Canon Law provides for the administration of the Sacrament of Penance, which has both a juridical function and a reconciliatory function. Canon Law Sections 960–997 deal with the office of

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confessor having jurisdiction to hear confession and the rights and duties of the penitent. 4.106 In Sri Lankan criminal law, the courts are only concerned about the external forum. Matters of conscience do not come within the competence of the court. 4.107 Punishments: Comparative Study. Canonical punishments are markedly different form Sri Lankan criminal punishment, in that the former tend to be more spiritual, the latter corporeal or physical. 4.108 There is a common element in both systems, namely, the reintegration of the wrongdoer into the community. Canonical sanctions have the ultimate objective of saving the soul of the believer (Salus animarum est suprema lex), whereas in Sri Lankan law, it is social integration. 4.109 Both in Sri Lankan criminal law as well as in Catholic Canon Law, purposes of punishment tend to be rehabilitation and restorative justice. In keeping with these objectives, the 1983 Code of Canon Law reduced the number of offences considerably in comparison with the 1917 Code. In a manner similar to Canon Law, Sri Lankan criminal law has introduced suspended sentences and community service in lieu of imprisonment and fines. 4.110 Defences: Comparative Perspective. General defences in both systems are similar (such as age, insanity, duress, selfdefence) and may negate the mens rea. 4.111 Special defences in both systems mitigate the sentence (drunkenness, provocation and one who exceeds the right to self-defence).

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4.112 Comparison based on First, Second, Third, Fourth, Sixth and Ninth Commandments. First, Second and Third Commandments. In Catholic teachings, the largest number of penalties is applied to offences connected to the First and Second Commandments. Heresy, schism and apostasy are grave sins and are also canonical offences. The most severe punishment of excommunication is imposed for those who offend these norms. 4.113 In Sri Lankan criminal law, offences connected with religion are viewed from the perspective of social harmony. Since religion in Sri Lanka plays a decisive role in the community, offences that hurt religious sentiments of people are punished as a deterrent to prevent civil disturbances. 4.114 Fourth Commandment. From a religious and moral point of view, respect for elders is considered a superior virtue. From the Catholic viewpoint, both family (which is miniature Church) and the macro family of the organised Church and civil society are essential for the values of peace and justice. Detailed guidelines are given in respect of both the micro and macro communities. 4.115 In Sri Lankan criminal law, micro family matters do not come within the purview of criminal sanctions. They are left to monitor their own welfare. In contrast — the state’s interest being paramount and its security indispensable — numerous criminal sanctions are imposed against anyone who attempts to disrupt the smooth functioning of the state. 4.116 Sixth and Ninth Commandments. In the Catholic tradition, sins against the Sixth and Ninth Commandments loom large. Violations of these commandments and

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reintegration to the Church were meant to be confined to the confessional. Moreover, there were inherent social controls against violations of these commandments; sexual misconduct carries a heavy social stigma. 4.117 Canonical sanctions against these two commandments were not strictly penal. Since Catholic teaching desires maintaining the sanctity of marriage, violations of these commandments both prior to and during marriage became impediments to a sacramental marriage. Persistent infidelity of the spouses became grounds for nullity of marriage. 4.118 In Sri Lankan criminal law too, violation of these commandments (e.g., bigamy and rape) are met with severe penal sanctions. In particular, sexual abuse of minors (children) in recent times has drawn the opprobrium of society. Even those suspected of such crimes are virtually denied bail. 4.119 Comparison based on the Fifth, Seventh and Ninth Commandments and Prohibition on Killing. Murder and abortion are grave offences under both legal systems. Sri Lankan law imposes the death penalty for murder and seven years imprisonment for abortion (20 years if death results from an attempted abortion). 4.120 The canonical sanction for both offences is latae sententiae censure (sentence already passed). 4.121 Definitions of the offences of murder and abortion in Sri Lankan law are detailed and precise, whereas Canon 1397 (murder) and Canon 1398 (abortion) do not spell out the elements of crime. 4.122 A remarkable difference between Sri Lankan law and

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Canon Law on abortion is about the defence of saving the mother. In the Waidyasekara case, the courts held that the fetus was rudimentary life and the life of the mother was more valuable, but Christian jurisprudence regards the lives of the baby and the mother as equal. Since the baby is innocent, it requires greater protection. 4.123 The only instance where abortion is justified in Canon Law is when the primary intention of the parties is to save the mother and the baby dies as an unforeseen effect. The relevant moral principle is called the principal of double effect. Under no circumstance may the fetus be destroyed directly.

(10) Conclusion 4.124 Both Catholic theology and the secular criminal law of Sri Lanka share a common end, namely the wellbeing, peace and prosperity in the society. It can be stated that the two are dancing, one might say, to different drumbeats. Catholic teaching primarily approach her objective from a spiritual point of view and the latter a very pragmatic and a positivist point of view. 4.125 The Sri Lanka criminal law is wholly determined by statute, in that sense “a-moral” and “a-religious”. However, moral and/or religious sentiments and values mould the societal values of Sri Lanka. Hence through them statutory provisions acquire some religious flavour. “Moral and religious under-currents which Sri Lankan criminal law account for is absolute to the legislative prohibitions, but are by no means conclusive”.115

115

Peiris, G. L., Offences under the Penal Code of Ceylon (Sri Lanka), 2nd. Edn., Lake House Printers, Sri Lanka, 1973. p. 444

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The Rule of Law in the WTO: The Hope and the Disappointment of WTO Decision Making Wenwei GUAN1

(1) Introduction: WTO and the Rule of Law 5.01 The importance of the rule of law is universally acknowledged in contemporary domestic and international society, though its conceptualisation and experiences might vary. Central to the concept of the rule of law is the constraint of arbitrary state power. Although the rule of law can be traced back to different historical experiences in England, North America, Germany, and France, in one way or the other, these experiences all recognise the rule of law as the normative and institutional structure of a modern state that protects individual rights by placing constraints on arbitrary political power.2 Or to put it in another way, the rule of law prescribes ‘a peculiar relationship between “state” and “law” which is, overall, beneficial to individuals’.3

1



2



3



Assistant Professor, School of Law, City University of Hong Kong. I would like to take this opportunity to wish Dr. Anton J. Cooray all the best, and thank him for his generous support throughout these years in the School. I enjoyed very much being Dr. Cooray’s neighbor, and our great conversations about academia, food, and exercise, among other topics. Danilo Zolo, ‘The Rule of Law: A Critical Reappraisal’ in Pietro Costa and Danilo Zolo (eds), The Rule of Law: History, Theory and Criticism (Springer 2007) 7. Pietro Costa, ‘The Rule of Law: A Historical Introduction’ in Pietro Costa and Danilo Zolo (eds), The Rule of Law: History, Theory and Criticism (Springer 2007) 74.

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5.02 Beyond the domestic realm of politics, the experience of the rule of law has to some extent also inspired theories on international law and institutions.4 The Universal Declaration on Human Rights, for example, states that ‘it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law’.5 This is also true in the international trading framework. From the General Agreement on Tariff and Trade (GATT) to the World Trade Organization (WTO), the international trading framework has made positive contributions to the construction of international rule of law.6 The former WTO Appellate Body Chairman, James BACCHUS, points out that: For more than half a century now, the GATTbased trading system has been establishing the international rule of law in international trade— rule by rule, and case by case. For many years now, there has been an ever-expanding treasure of international jurisprudence arising, first, from the experience of the GATT, and, now, from the experience of the dispute settlement system of the new WTO.7

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Zolo (n 1) 41–42. Preamble, Universal Declaration of Human Rights, G.A. Res. 217A, U.N. Doc. A/810, p. 71 (1948). GATT is a multilateral agreement regulating international trade signed in 1947. The WTO was the result of the Uruguay Round trade negotiations of GATT and was established on 1 January 1995. James Bacchus, ‘Groping Toward Grotius: The WTO and the International Rule of Law’ (2003) 44(2) Harvard International Law Journal 539. Emphasis added.

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5.03 However, criticism about the legitimacy of the WTO law and on issues of WTO decision making remains.8 Among others, WTO decision making by consensus, and its dispute settlement mechanism in particular, is one of the key issues.9 This chapter therefore aims to take the readers on a brief trip into the WTO framework to see how the rule of law works in the WTO context through examination of decision making in the international trading framework. In the next section, the chapter starts with a brief introduction of past and present decision making by consensus in the GATT/WTO and its relation to international rule of law, followed by a discussion of the consensus principle’s merits and contractarian basis. In section 3, the chapter analyzes the practical and theoretical issues of decision making by consensus. The analysis suggests that the WTO’s consensus decision making not only defers to trading power, but also causes disenfranchisement and paralysis. These practical issues, as the chapter further reveals in section 3, reveal the lack of member consent, a contractarian deficit that endangers WTO rule of law. The chapter concludes with a call to revisit the WTO decision-making mechanism for a better future of international rule of law.

(2) The Consensus Rule and Decision Making in the WTO 5.04 Decision Making by Consensus and the Rules-based WTO Regime. Needless to say, the mechanism of decision making

8



9



See, e.g., Andreas R. Ziegler and Yves Bonzon, ‘How to Reform WTO Decision-making? An Analysis of the Current Functioning of the Organization from the Perspective of Efficiency and Legitimacy’ in Swiss NNCR TRADE Working Paper No 2007/23 (May 2007) accessed 25 July 2013; Thomas Cottier, ‘The Legitimacy of WTO Law’ in Swiss NNCR TRADE Working Paper No 2008/19 (November 2008) accessed 25 July 2013. See, e.g., Cottier (n 7) 28–29.

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and dispute settlement is of fundamental importance to most multilateral treaty frameworks. Among them, the WTO as a rules-based international treaty framework has won much praise. Former WTO director-general Renato Ruggiero stressed that ‘only the multilateral system provides an agreed framework of enforceable rules for the global economy’ and that: The WTO is rules-based. Almost uniquely in the history of international relations, the WTO is based on a set of rules — or contractual obligations— governing trade and economic policy. This greatly reduces the uncertainty surrounding transactions across national frontiers, which in turn promotes trade-related investment, job creation and economic growth. More importantly, the system helps ensure that the economic relations among nations are based on the rule of law, not the rule of power.10 5.05 As for decision making, the WTO Agreement states that ‘[a]t meetings of the Ministerial Conference and the General Council, each Member of the WTO shall have one vote’, and these decisions ‘shall be taken by a majority of the votes cast’ unless provided otherwise.11 The sovereign equality principle is generally recognised. The WTO also recognises the importance of decision making by consensus:

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Renato Ruggiero, ‘The Future Path of the Multilateral Trading System’ (Address to the Korean Business Association, Seoul, Korea,17 April 1997) accessed on 23 July 2013. Emphasis added. Article IX.1 of the Marrakesh Agreement Establishing the World Trade Organization (the WTO Agreement) (15 April 1994), 1867 U.N.T.S. 154, 33 I.L.M. 1144 (1994).

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The WTO shall continue the practice of decision making by consensus followed under GATT 1947. Except as otherwise provided, where a decision cannot be arrived at by consensus, the matter at issue shall be decided by voting.12 5.06 Therefore, decision making by consensus is the norm in the WTO. According to the WTO Agreement, a decision by consensus is deemed to have been reached ‘if no Member, present at the meeting when the decision is taken, formally objects to the proposed decision’.13 On the face of it, any member in the WTO can defeat a consensus as long as the member concerned presents at the meeting and formally objects to the decision. The consensus rule gives every member of the WTO, no matter how rich or poor, an implicit veto power. Making decisions by consensus at the GATT/WTO is grounded on the ‘notion of sovereign equality of states derived from natural law theory and later adopted by positivists and others’.14 It is this basis that gives the consensus rule some flavor of the rule of law. John H. JACKSON comments: The [consensus] rule forces the membership to achieve as wide an acceptance of new measures as possible, thus lending democratic legitimacy to measures that are finally adopted. It therefore forces the richer and more powerful members of the organisation to take into consideration the needs and opinions of all parts of the

12

14 13

ibid. WTO Agreement, Article IX.1, original footnote 1. Richard H. Steinberg, ‘In the Shadow of Law or Power? ConsensusBased Bargaining and Outcomes in the GATT/WTO’ (Spring 2002) 56.2 International Organization 339–340.

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organisation, including the poorer and less powerful governments.15 5.07 Decision making by consensus evolved from GATT practice. As JACKSON points out, ‘[t]he practice in GATT generally was to avoid formal voting’, and ‘there was in fact some fear of voting’.16 According to JACKSON, ‘[t]he voting structure, as in so many international organisations today, bears little resemblance to the real power relations of the participants’.17 The fear of voting ‘in fact influence[s] the negotiations toward a consensus’.18 The consensus principle can, however, lead to some serious paralysis issues. In the GATT era, a panel report becomes binding only after the Council approves it through consensus. When a party prevents consensus, the report is not adopted and will not have binding status, which makes the dispute settlement process meaningless. About this ‘critical defect’, JACKSON comments: In effect, the [dispute settlement] procedure which relied on consensus meant that the nation which “lost” in the panel and might otherwise be obligated to follow the panel obligations, could block the council action by raising objections to the consensus. Thus, the losing party to the dispute could avoid the consequences of its loss. This “blocking” was deemed to be the most significant defect in the GATT process.19

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19 18

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John H. Jackson, Sovereignty, the WTO and Changing Fundamentals of International Law (Cambridge University Press 2006) 114. John H. Jackson, The World Trading System: Law and Policy of International Economic Relations (2nd edn, MIT Press 1997) 65. ibid. ibid 69. John H. Jackson, The Jurisprudence of GATT & the WTO: Insights on Treaty Law and Economic Relations (Cambridge University Press 2000) 175.

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5.08 In the GATT era, paralysis could also result when the complaining party requested a panel procedure, though this procedure became very difficult to initiate, diplomatically, after the mid-1980s.20 As the GATT dispute settlement process gained more recognition during the course of GATT development, more trade policy interests than goods trade, including intellectual property and services trade interests, sought to bring these interests under the dispute settlement process. The reverse consensus exceptions in the Dispute Settlement Understanding (DSU) procedures that came out of the Uruguay Round cured the two blocking defects in the GATT process.21 From positive to negative consensus: ‘What happened at the Marrakesh Ministerial Conference in 1994 creating the WTO was a very important qualitative change, and it was done by changing one word, one adjective’.22 Under the DSU, the general rule for the Dispute Settlement Body (DSB) is to make decisions by consensus.23 However, for establishment of panels, adoption of panel and Appellate Body reports, or authorisation of retaliation, the DSB makes decision by ‘reverse, or negative consensus’.24 The negative consensus decision making was of fundamental importance to the rule of law. Under negative consensus decision making, the establishment of panels and the adoption of reports become essentially automatic. Some researchers have suggested that WTO adjudicating bodies — panels and the

20

22 21

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ibid 177. ibid 178. Rufus Yerxa, ‘The Power of the WTO Dispute Settlement System’ in Rufus Yerxa and Bruce Wilson (eds), Key Issues in WTO Dispute Settlement: The First Ten Years (Cambridge University Press 2005) 8. Article 2.4 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) (Marrakesh, Morocco, 15 April 1994), Marrakesh Agreement Establishing the World Trade Organization, Annex 2,1869 U.N.T.S. 401, 33 I.L.M. 1226 (1994). DSU, arts 6.1, 16.4, 17.14, and 22.6.

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Appellate Body — act independently like courts, and with their inherent jurisdiction, protect due process.25 5.09 Because it treats consensus as a requirement of decision making, the WTO as a rules-based multilateral framework contributes positively to the development of international trading regulations. The consensus principle’s emphasis on sovereign equality safeguards the rule of law in the international trading framework. 5.10 The Contractarian Foundation of Consensus Decision Making. The WTO’s contribution to international rule of law owes much to the consensus principle, which endorses sovereign equality and levels the playing field among the rich and the poor, or among the developed, developing, and least developed countries. The consensus principle mimics a fundamental aspect of international society — that international law is built on state consent. 5.11 The consensus principle endorses sovereign equality by soliciting members’ consents. This is an intentional or unintentional application of social contract theory in international law. Similar to terms of a contract in domestic law, the adopted text of an international treaty ‘is the result … of the meeting of minds … [and] the meeting of various motives’.26 It is probably in this regard that the Appellate Body stated in Japan — Alcoholic Beverage II, ‘The WTO Agreement is a treaty — the international

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See, e.g., Andrew Mitchell, ‘Due Process in WTO disputes’ in Rufus Yerxa and Bruce Wilson (eds), Key Issues in WTO Dispute Settlement: The First Ten Years (Cambridge University Press 2005) 157–158. Roy S. Lee, ‘Multilateral Treaty-making and Negotiation Techniques: An Appraisal’ in B. Cheng and E.D. Brown (eds), Contemporary Problems of International Law: Essays in Honour of Georg Schwarzenberger on His Eightieth Birthday (Stevens & Sons Ltd. 1988) 160.

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equivalent of a contract’.27 Therefore, that ‘the treaty is presumed to reflect the common intention of the parties’ becomes a natural ‘fiction’.28 During decision making by consensus, members’ giving up the ‘implicit veto power’ and accepting the decision reflects the contracting process of the ‘meeting of minds’. 5.12 By asking for members’ consents, decision making by consensus is in fact an application of social contract theory in the realm of public international law. In general, justifying the legitimacy of governance from consent can be traced back as early as the first half of the 14th century, as evidenced by the medieval maxim, quod omnes tanget (what touches all must be approved by all).29 As for how this consent constitutes governmental legitimacy, many theorists, such as LOCKE, ROUSSEAU, and KANT, boil it down to a social contract.30 HENKIN explains: A legitimate political society is based on the consent of the people, reflected in a social contract among the people to institute a government. The social contract generally takes the form of a constitution, which also establishes a framework of government and a blueprint for its institutions.31

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Appellate Body Report on Japan — Taxes on Alcoholic Beverages, WT/ DS8/10/11/AB/R, adopted 4 October 1996, p. 14. Isabelle Van Damme, Treaty Interpretation by the WTO Appellate Body (Oxford University Press 2009) 367. J. G. Merquior, Rousseau and Weber: Two Studies in the Theory of Legitimacy (Routledge & Kegan Paul 1980) 3. J. Delbrück, ‘Exercising Public Authority beyond the State: Transnational Democracy and/or Alternative Legitimation Strategies?’ (2003) 10(1) Indiana Journal of Global Legal Studies 29. Louis Henkin, Constitutionalism, Democracy, and Foreign Affairs (Columbia University Press 1990) 5.

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5.13 Social contract theory also forms the foundation of legitimate international governance. In his discussion of the relationship of individuals to the state under the framework of sovereignty in the international legal system, Brand suggests that the international legal framework is a ‘two-tiered social contract’, ‘under which the individual relates to the state in domestic law, and only the state relates to the international legal order in international law’.32 In his essay, ‘Mythology of Sovereignty’, HENKIN argues that ‘states are subject to the international social contract, and the end of World War II saw a new social contract in the UN Charter’.33 Yet, while countries are the makers of international law, they at the same time are bound by international law. In general, there is no superior authority to the countries. Therefore, state consent is the source of the binding force of international law. HENKIN suggests that ‘state consent is the foundation of international law’ and the fact that ‘law is binding on a state only by its consent remains an axiom of the political system, an implication of state autonomy’.34 5.14 The WTO judicial bodies’ emphasis on the importance of the ‘common intentions’ in treaty interpretation indicates the significance of consent in consensus decision making. In EC — Computer Equipment, where the Appellate Body resorted to the ‘common intentions of all members’ to deal with the issue of what LAN equipment should be

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Ronald A. Brand, ‘Sovereignty: The State, the Individual, and the International Legal System in the Twenty First Century’ (2002) 25 Hastings International and Comparative Law Review 286-7. Louis Henkin, ‘The Mythology of Sovereignty’, American Society of International Law (ASIL) Newsletter (March 1993) 1. Louis Henkin, International Law: Politics and Values (Kluwer Academic Publishers 1995) 27.

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covered in the EC’s tariff classification, the WTO Appellate Body stated, ‘The purpose of treaty interpretation under Article 31 of the Vienna Convention is to ascertain the common intentions of the parties’.35 This ‘common intention’ approach has been repeatedly cited in later cases. Indeed, the WTO panels and the Appellate Body have consistently referred to the ‘common intentions of all parties’ to interpret treaties in WTO dispute settlements.36 In EC — Computer Equipment, the EC’s argument serves as a good illustration of this line of logic; the EC argued that ‘the existence of a common intention forms the basis for the mutual consent of the signatories to be bound by an international agreement’.37 5.15 Therefore, if decision making by consensus solicits members’ consents successfully, the binding force of that given agreement or decision will be evident. The consensus principle

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Appellate Body Report on European Communities — Customs Classification of Certain Computer Equipment (hereinafter EC — Computer Equipment), WT/DS62/AB/R, adopted 5 June 1998, para. 84. Emphasis original. See, eg, Appellate Body Report on European Communities — Customs Classification of Frozen Boneless Chicken Cuts, WT/DS269/286/AB/R, adopted 12 September 2005, para. 250; Panel Report on United States — Measures affecting the Cross-Border Supply of Gambling and Betting Service, WT/DS285/R, adopted 10 November 2004, para. 6.136, or Appellate Body Report on United States — Measures affecting the Cross-Border Supply of Gambling and Betting Service, WT/DS285/AB/R, adopted 7 April 2005, paras. 159–160; Appellate Body report on European Communities — Regime for the Importation, Sale and Distribution of Bananas: Second Recourse to Article 21.5 of the DSU by Ecuador, WT/DS27/AB/RW2/ECU, adopted 26 November 2008, paras. 408–409, and footnote to para. 445; Appellate Body Report on European Communities and Certain Member States — Measures affecting Trade in Large Civil Aircraft, WT/DS316/AB/R, adopted 18 May 2011, para. 845; Appellate Body Report on Thailand — Customs and Fiscal Measures on Cigarettes from the Philippines, WT/DS371/AB/R, adopted 17 June 2011, para. 201. Appellate Body Report on EC — Computer Equipment, para. 11. Emphasis added.

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then lends ‘democratic legitimacy’ to WTO decision making and thus enhances international rule of law.38

(3) Practical and Theoretical Issues and Critiques of the Consensus Principle 5.16 Practical Issues with the Consensus Principle and the Rule of Law. Decision making by consensus can enhance democracy and the rule of law, but is not without its problems. As to whether multilateral decision making is a guarantee of legality in decision making, Ian Brownlie suggests that ‘it militates in favour of legality, but it is by no means a guarantee thereof’, as a state ‘can use its political and economic clout to ensure an artificial consensus’.39 A study on decision making in the European Union suggests that there are five issues resulting from consensus decision making, including issue censorship or truncation, sloppy decision making, legitimacy, the possibility of lagging implementation, and the increasing marginalisation of the European Commission.40 Some realists have suggested that ‘[t]he decisions reached by consensus are actually silent votes where the outvoted minority, realising it has lost, will capitulate (the ‘shadow of the vote’) and agree to the consensus’.41

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Jackson, Sovereignty, the WTO and Changing Fundamentals of International Law (n 14) 114. Ian Brownlie also provides two examples in the context of a discussion of the use of force by states, ie, the US intervention in the Dominican Republic in 1965 and the invasion of Czechoslovakia by Warsaw Pact forces in 1968. Ian Brownlie, The Rule of Law in International Affairs: International Law at the Fiftieth Anniversary of the United Nations (Martinus Nijhoff Publishers 1998) 202. Dorothee Heisenberg, ‘Informal Decision-Making in the Council: the Secret of the EU’s Success?’ in Sophie Meunier and Kathleen R. McNamara (eds), Making History: European Integration and Institutional Change at Fifty (Oxford University Press 2007) 73. ibid 78.

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5.17 Although BROWNLIE’s comments on consensus decision making are within a broader background of public international law, they are also true in the GATT/WTO context. If the consensus approach is strictly applied, it will give every member a veto, which makes reaching common agreement very difficult. When it is not strictly applied, ‘there will often be deference to the real “power structure” of the participants, and this in fact may give the most powerful of the group an even larger share of the power than policy or equity might dictate’.42 Therefore, some considers consensus decision making in the WTO as ‘“shadow” weighted voting’, or ‘a hidden system of weighted voting as the reality is that larger countries find it easier to influence voting outcomes than smaller ones’.43 LOW suggests: It would be more costly for smaller countries to challenge an outcome popular with large countries than vice-versa. Similarly, blocking a consensus with a veto is much more difficult for less powerful countries. Large countries have been willing to accept a one-country one-vote arrangement on the assumption that voting would not be used and that the veto would only be applied with great moderation.44 5.18 From a sociolegal perspective, a critical examination of how international trade law mediates power relationships between states might conclude that the consensus

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ibid 69–70. Patrick Low, ‘WTO Decision-Making for the Future’, WTO Staff Working Paper ERSD-2011-05 (02 May 2011) 4 accessed 25 July 2013. ibid 5.

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principle’s deference to trading power is somewhat inevitable. CONTI, for example, suggests the rule of law might not level the playing field as much as one might think, as ‘power relationships do not disappear in legal contexts, but are instead reconfigured, authorizing new strategies and resources in the context of political and symbolic skirmishing’.45 5.19 STEINBERG explains consensus decision making’s deference to power very well. In general, STEINBERG posits, both realists and behavioralists believe that in hard law organisations like the GATT/WTO, there is a direct relationship between power, voting rules, and outcomes. Powerful entities like the EC and the US, however, support a consensus decision-making rule in the GATT/WTO, as ‘they have dominated bargaining and outcomes at the GATT/WTO from its early years’.46 In launching the Uruguay Round negotiation, ‘developing country power derived most proximately from law, but ultimately from the willingness of powerful countries to bargain exclusively in the shadow of law’ as the Group of Five’s efforts to block consensus on agenda setting was not successful.47 Agenda setting in the current Doha Round, including advancing initiatives, developing proposals, and drafting the final act for approval, is dominated by big powers like the EC and the US.48 In GATT/WTO practice, powerful states prefer decision by consensus over weighted voting

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48

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Joseph A. Conti, Between Law and Diplomacy: The Social Contexts of Disputing at the World Trade Organization (Stanford University Press 2011) 12. Richard H. Steinberg, ‘In the Shadow of Law or Power? ConsensusBased Bargaining and Outcomes in the GATT/WTO’ (Spring 2002) 56.2 International Organization 340–341. ibid 351–353. ibid 353–357.

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because the sovereign equality rules ‘provide incentives and opportunities for collecting the information necessary for successful agenda-setting process’.49 Therefore, Steinberg suggests, ‘GATT/WTO decision-making rules based on the sovereign equality of states are organised hypocrisy in the procedural context’.50 5.20 Aside from the deference to trading power, JACKSON also mentions the sluggishness or paralysis effect of the consensus rule. For example, amendments to Agreements in Annex 2 can be proposed by any member, yet approval ‘shall be made by consensus’.51 When it is difficult to reach consensus, ‘the emphasis on consensus decision making in the WTO can sometimes lead to paralysis, and can be blamed for the perceived inability of the organization to achieve very much’.52 Low also suggests that ‘the veto implicit in consensus decision-making imparts a bias towards lowest-common-denominator outcomes’.53 5.21 In addition to the sluggishness issue, the consensus practice also brings in other problems. Aiming at solving the blockage issue in GATT, the reverse consensus principle in decision making in the DSU framework brings in new issues. As mentioned above, only objections formally raised by those parties to the agreement that are present at the meeting would block consensus. Absence from a meeting or the voting procedure required or an abstaining position do not qualify as objections, which places a lesser

49

51 52 50

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ibid 361. ibid 365. WTO Agreement, art X.8. Jackson, Sovereignty, the WTO and Changing Fundamentals of International Law (n 14) 113. For discussion on ‘consensus paralysis’, see p. 204. Low (n 42) 3.

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burden on decision making than some super-majority requirements. Accordingly, JACKSON suggests that, the consensus rule ‘can thus be criticised as disenfranchising members that are absent but may have strong interests to protect’.54 5.22 Theoretical Issues with the Consensus Principle and the Rule of Law. As the preceding paragraphs show, consensus decision making in the WTO in general or the reverse consensus in the DSU process in particular contains some inevitable issues, including the deference to trading powers, the disenfranchising effect, and the sluggishness or even paralysis effect. When looking at the consensus principle’s contractarian justification, the principle presents some theoretical difficulties too. 5.23 The consensus principle’s dependence on members’ consents brings us to its philosophical roots: the contractarian justification of legitimacy. Just as autonomous and independent individuals submit themselves to the social contract — through consent — yet at the same time remain free and autonomous, decision making by consensus in the WTO framework binds members to the trading regime through their consents while respecting sovereign equality.55 Therefore, decision making by consensus inevitably encounters the same theoretical issues as the traditional social contract theory does.

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Jackson, Sovereignty, the WTO and Changing Fundamentals of International Law (n 14) 113. For a discussion of the underpinnings of social contract theory, see eg J.J. Rousseau, The Social Contract (Penguin Books 1968) 60.

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5.24 Eminent legal historian Henry MAINE criticises social contract theory as lawyers’ ahistoric ‘superstition’, a misuse of the ‘Roman jurisprudence of Contract’.56 According to MAINE, the social contract theory was first developed as a political explanation of monarchical authority using legal terms from the Roman law of contract in effect during the decay of the feudal system and the decline of papal authority after the Reformation. Therefore, ‘[t]he Roman jurisprudence of Contract had performed for the relation of sovereign and subject precisely the same service which, in a humbler sphere, it rendered to the relation of persons bound together by an obligation of “quasi-contract”’.57 MAINE thus points out that ‘attribut[ing] political rights and duties to an Original Compact between the governed and the governor’ is a ‘famous error’.58 By characterising the social contract as the initiating force behind social development, traditional social contract theory perceives social development as a sudden leap from the state of nature to the state of civil society upon the birth of a social contract rather than a gradual and imperceptible process.59 5.25 The WTO, like most other multilateral treaty frameworks, however, is an open and non-exclusive arrangement, a living organic institution of a gradual and imperceptible process of evolution instead of a product of a sudden leap from the state of nature to the state of civil society upon the birth of a social contract. In most international treaty arrangements, some countries that take part in treaty

56

58 59 57

Henry Maine, Ancient Law (J.M. Dent & Sons Ltd. 1917) 52–53, 202–203. ibid 203. ibid 202. ibid 68. According to Maine, Hobbes and Locke share this problem with each other, although they might be categorised into different schools of social contract theory.

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negotiations may not join the treaty in the end, while some acceding countries might not have participated in the negotiation process. This is particularly the case in the establishment of the WTO.60 PAUWELYN suggests that modern multilateral treaties, including the WTO treaty, are ‘continuing treaties’ and this type of treaty norm ‘does not reflect a once-and-for-all expression of state consent’.61 According to PAUWELYN, it ‘would be absurd and inconsistent with the genuine will of states to “freeze” such rules into the mold of the time when they were originally created and to label them an expression of state consent limited to, say, April 15, 1994’.62 PAUWELYN suggests that most provisions of these modern multilateral treaties: …are part of a framework or system that is continuously confirmed, implemented, adapted, and expanded, for example, by means of judicial decisions, interpretations, new norms, and the accession of new state parties (for which both the new party and the reciprocal acceptance of all, or a majority of, the existing parties are required). Not only were such treaty norms consented to when they originally emerged, but they continue to be

60



61



62



See, e.g., Jackson, Sovereignty, the WTO and Changing Fundamentals of International Law (n 14) 82: ‘There are some important lessons in the GATT/WTO story … Perhaps the most significant lesson is that human institutions inevitably evolve and change, and concepts which ignore that, such as concepts which try to cling to “original intent of draftspersons,” or some inclination to disparage or deny the validity of some of these evolutions and changes, could be damaging to the broader purposes of the institutions. Governments (or societies) which consent to become members will not be frozen in time …’ Joost Pauwelyn, ‘The Role of Public International Law in the WTO: How Far Can We Go?’ (2001) 95 The American Journal of International Law 535, 546. ibid.

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confirmed, either directly or indirectly, throughout their existence, in particular when monitored and evolving within the context of an international organization (e.g., the WTO).63 5.26 It is difficult to reconcile the dynamic consensus developing process in the WTO — a living dynamic evolving over time — with the static and once-and-for-all ‘Original Compact’ in social contract theory. As consensus decision making enshrines parties’ intentions and consents, ‘common intentions of all’ are of fundamental importance to decision making in general and treaty interpretation in dispute settlement process in particular.64 ‘Common intentions’ are evolutionary, and so is consensus. In dispute settlement, for example, though a treaty’s provisions are ‘normally to be interpreted on the basis of their meaning at the time the treaty was concluded’, when provisions involved are not static, interpretation should reflect that non-static nature, since ‘in some respects the interpretation of a treaty’s provisions cannot be divorced from developments in the law subsequent to its adoption’.65 This is because parties’ intentions regarding a multilateral treaty are never static or fixed at certain time. In Namibia (Legal Consequences) Advisory Opinion, the ICJ stated that ‘the primary necessity of interpreting an instrument in accordance with the intentions of the parties at the time of its conclusion’, but emphasised that where concepts embodied in a treaty are ‘not static’ and ‘by definition, [are] evolutionary’, their

63

65 64

ibid 545–546. See discussion beginning with para 10 above. Robert Jennings and Arthur Watts, Oppenheim’s International Law, Vol. I (9th edn, Longman Group UK Ltd. 1992) 1282.

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‘interpretation cannot remain unaffected by the subsequent development of law’.66 5.27 Moreover, reconciling the static and once-and-for-all ‘Original Compact’ in social contract theory with WTO decision making is particularly difficult considering the incomplete nature of the WTO treaty framework. As VAN DAMME suggests, ‘The common intention is only formed once the treaty language has been drafted and will develop over time and with the accession of new parties’.67 Many studies have demonstrated this unfinished feature of the WTO treaty framework. In his discussion of the GATT/WTO legal system, HUDEC suggests that international trade law differs from domestic legal systems in its ‘overriding concern for “flexibility”’ — ‘the insistence that the law’s coercive pressures be applied in a controlled fashion which allows room for maneuver at every stage of the process’. Moreover, this flexibility gives the GATT/ WTO ‘a capacity for creative development’, and some ‘possibility of growth’.68 ARUP too, in discussion of both the ‘deregulatory’ and ‘strong re-regulatory’ dimensions of WTO agreements, suggests that, while WTO agreements ‘impose disciplines, in many respects they are best regarded as “unfinished stories”’ with room for mediation through successive negotiations as well as adjustment in particular cases through the dispute settlement process.69 Therefore,

66



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68

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Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Rep. 1971 (June 21), p. 31. Van Damme (n 27) 313. Robert E. Hudec, Essays on the Nature of International Trade Law (Cameron May 1999) 75–6. Christopher Arup, The New World Trade Organization Agreements: Globalizing Law Through Services and Intellectual Property (Cambridge University Press 2000) 12–3, 40. Emphasis added.

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consensus decision making’s quest for members’ consents in ‘common intentions’ must be understood in a dynamic process rather than at a static point of time. 5.28 As members’ consents in ‘common intentions’ must be understood in a dynamic process, the static and once-andfor-all ‘Original Compact’ in social contract theory fails to provide the contractarian consents needed in consensus decision making. The traditional interpretation of social contract theory fails to justify consensus decision making in the WTO, as it fails to ensure a dynamic process of forming consensus. Consensus decision making therefore causes a disenfranchising effect in the WTO framework. The rule of law in the WTO collapses when decision making by consensus fails to fully enshrine consents from members.

(4) Conclusion: Hope and Disappointment 5.29 The international trading regime, from GATT to the WTO, has significantly contributed to the development of international rule of law. At first glance, the founding of the WTO, and the function and progress of the decisionmaking process under the DSU in particular, regulates the international trade and tames trading powers with great success. On the surface, the consensus principle’s recognition of the sovereign equality in particular gives us hope for international rule of law. 5.30 However, a closer look at decision making by consensus may lead to disappointment about the WTO’s contribution to the rule of law. From a practical perspective, decision making by consensus in the WTO may cause paralysis and disenfranchisement, which contradicts the rule of law. From a theoretical perspective, the consensus principle’s

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contractarian consent encounters significant difficulties in theoretical justification as the process of forming consensus can only be understood in a dynamic process of evolution. When decision making by consensus fails to secure members’ consents, the WTO decision-making process loses its legitimacy. A critical examination of the practice of WTO decision making by consensus leads to disappointment regarding international rule of law in the international trading regime. 5.31 Revisiting the decision-making mechanism in the WTO is necessary. A more flexible mechanism embracing consent from both the poor and the rich, to balance interests of both the weak and the powerful is needed for the sake of rule of law. This can only be done if we return the consensus forming mechanism to a dynamic process of evolution that recognises diverse interests of all members, no matter poor or rich, weak or powerful.

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In the Name of Harmony: The Erasure of Domestic Violence in China’s Judicial Mediation1 Xin HE2 Kwai Hang NG3

(1) Introduction 6.01 Perhaps the most conspicuous development in the Chinese judicial reforms of the last decade is the return to judicial mediation. Since the second term of Yang XIAO, the former president of the Supreme People’s Court (SPC), Chinese courts have once again emphasised mediation over adjudication. Official statistics show that in 2010, more than 65% of civil cases were resolved through either mediation or withdrawal,4, 5 and the rate has been rising for the past eight years. The primary justification for mediation’s return is that it will contribute to social

1



2



3

4



5



This Chapter is based on an article with the same title published in Internatonal Journal of Law, Policy and the Family, Vol. 27, no. 1, 97–115, 2013. Professor, School of Law, City University of Hong Kong. Associate Professor, Department of Sociology, University of California, San Diego. In most situations, mediations and withdrawals are difficult to differentiate because a platintiff may withdraw her petition when a settlement has been reached. In official statistics, the case can be either categorised as one that was resolved by mediation or as a withdrawal. China Law Society, China Law Yearbook, 2011 [中國法律年鑒社] (China Law Yearbooks Press 2011).

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harmony,6 a paramount goal pursued by the ruling communist party. For example, Liming WANG, a renowned scholar and lawmaker, wrote: ‘Judicial mediation, as a combination of both ethics and laws, proves to be more acceptable to the parties, and the mediation agreements are more voluntarily performed. Thus, judicial mediation plays a positive role in resolving social conflicts and promoting social harmony.’7 6.02 Only a few scholars are critical of the practice. Carl MINZNER argues that overall, judicial mediation will do harm to the long term build-up of rule of law in China,8 and some are skeptical of the overarching role of mediation in dispute resolution in China.9 There has also been a longstanding concern shared among scholars that in prioritising settlement, judicial mediation as an exercise sacrifices legal rights litigants supposedly enjoy.10 Important as these concerns are, their focus is confined to the longterm impact of mediation to the legal system of China. It is fair to say that few have analyzed the interaction

6

Xin Xu, Jiufen jiejue yu shehui hexie [Dispute Resolution and Social Harmony] (Law Press 2006); Yu Fan,’Guanyu fayuan tiaojie de shizheng yanjiu’ [Empirical Analysis to Juridical Mediation] in Wang Yaxin (ed), Falü chengxu yunzuo de shizheng fenxi [An Empirical Analysis to Practice of Legal Procedures] (China University of Political Science and Law 2005). 7 Liming Wang, ‘Characteristics of China’s Judicial Mediation System’ (2009) 17 Asia Pacific Law Review (Special Issue) 17, 67. 8 Carl Minzner, ‘China’s Turn against Law’ (2011) 59 American Journal of Comparative Law 4, 935–984. 9 Suli Zhu, ‘Guanyu nengdong sifa yu datiaojie’ [On Judicial Activism and Grand Mediation] [2010] Zhongguo faxue [China Legal Science] 1, 14. 10 Stanley Lubman, ‘Dispute Resolution in China After Deng Xiaoping: Mao and Mediation Revisited’ (1999) 11 Columbia Journal of Asian Law 2; Randall Peerenboom, China’s Long March toward Rule of Law (Cambridge University Press 2002); Zhi Wu, ‘Litigation Mediation for Intellectual Property Disputes in Chinese Local Courts: Experiences and Contradictions’ (2009) 17 Asia Pac. L. Rev. 117–131.

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between judges and litigants in judicial mediation.11 The lack of data on how mediation actually works, especially the new form of judicial mediation12 now prevalent in the Chinese legal system, means that little has been said about the present and immediate effects of the practice on the growing number of civil litigants who arrive at the doorsteps of courthouses in China. 6.03 One of the fastest growing and socially most vulnerable groups of civil litigants is battered women who seek relief from the abuses done to them by their husbands. Domestic violence has become an increasingly serious problem in China. By some estimates, as high as 30% of families in China have issues with domestic violence.13 According to Ruozhi WU, who reviewed 310 divorce cases from 1950–2004 in a county in southern China, in almost all of the cases the wives alleged being abused by the husbands.14 Drawing from ethnographic observations of the actual proceedings of judicial mediation and in-depth interviews with judges who preside over divorce trials, this chapter explores how judicial mediation undermines the rights of these battered women in divorce cases. We find that even when the judges have been able to find evidence of domestic violence, it is often underplayed or

11

The only exception may be Ruozhi Wu, ‘On the Practice of the Family Law System in Contemporary China — South China’s R County as an Example’ [當代中國家事法制實踐研究—以華南R縣為例] (Ph.D. Dissertation, Renmin University of China 2007). 12 Xin He and Kwai Hang Ng, ‘Internal Contradictions of Judicial Mediation’ (2012 manuscript). 13 Robyn Wexler, ‘Domestic Violence, Not Just a Family Affair’ China Development Brief (1 April 2000) accessed 3 June 2013; Margaret Woo, ‘Shaping Citizenship: Chinese Family Law and Women’ (2003) 15 Yale J. Law & Feminism 99–134. 14 Wu (n 8) 203.

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erased in judicial mediation. We refer to this omission as a form of ‘erasure’, in ways similar to ‘the marginalization of domestic violence’ found by GREATBATCH and DINGWALL as well as TRINDER and others in their study of divorce mediation sessions.15 But the erasure practice underlines the wider power discrepancies inherent in judicial mediation in China. As we will show, women plaintiffs are rendered as passive victims who simply want to get out of their marriage in Chinese-style judicial mediation. Our findings raise important questions with regard to the policies on China’s family law procedures; in particular, it points to the inadequacies in safeguarding the human rights of women who suffered domestic violence. It also sheds light on the hidden problems created by a system that values conciliation and quick resolution over adjudication and the delivery of justice.

(2) Domestic Violence Laws In China 6.04 While gender equality has long been hailed as a fundamental social goal by the Chinese communist regime, the term ‘domestic violence’ did not appear in Chinese laws until 2001, the year when the marriage law was revised.16 In 2001, the SPC issued a judicial interpretation of the new marriage law. Domestic violence is defined as behavior toward a member of the family that results in injurious consequences physically, emotionally, or in other

15

David Greatbatch and Robert Dingwall, ‘The Marginalization of Domestic Violence in Divorce Mediation’ (1999) 13 International Journal of Law, Policy and the Family 174–190; Liz Trinder, Alan Firth, and Christopher Jenks, ‘”So Presumably Things have Moved on Since Then?” The Management of Risk Allegations in Child Contact Dispute Resolution’ (2010) 24(1) International Journal of Law, Policy and the Family 29–53. 16 The Marriage Law of the PRC, issued on September 10, 1980; amended on April 28, 2001.

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ways by ‘beating, tying up, injuring, forcibly restricting one’s personal freedom, or by other means’.17 Article 3 of the law prohibits domestic violence. Article 32 states that divorce shall be granted by court if domestic violence or, maltreatment and desertion of one family member by another, is found. For the purposes of this chapter, the most relevant part of the law is Article 46, which provides that the innocent party is entitled to damage compensation in divorces as a result of domestic violence. There are also some piecemeal local legislation and administrative orders that regulate the use of restraint orders. But the three articles mentioned above make up the core of the domestic violence law in China at the national level. Activists and scholars have called for a separate and more comprehensive national law on domestic violence. However, at the time of this writing, it has not been placed on the agenda of the National People’s Congress (NPC), the highest legislative body of China. Scholars have commented that the existing stipulations on domestic violence are terse and, in fact, quite vague. That said, the revised marriage law does allow for recourse to civil litigation for battered women. 6.05 Historically, there have been many difficulties facing battered women who took their cases to courts. Law enforcement officers in China were not particularly concerned with domestic violence complaints.18 They classified these complaints as ‘spousal quarrels’ or ‘family trouble’. Furthermore, in part because of the Confucian

17

Xingjuan Wang, ‘Domestic Violence in China’ in Tao Jie, Zheng Bijun, and Shirley L. Mow (eds), Holding up Half the Sky: Chinese Women Past, Present, and Future (Feminist Press at the City University of New York 2004) 182. 18 Donghua Liu, ‘Five-Year Consulting Report’ (Center for Women’s Law Studies and Legal Service of Peking University 2001) 6–7, cited in Sally Engle Merry, Human Rights & Gender Violence (The University of Chicago Press 2006) 149.

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belief in social harmony and in part because of the Chinese reluctance to interfere in the ‘family matters’ of others, there was a general reluctance among family members, friends, coworkers, and relatives to testify against the violent husband in court.19 ‘Even brothers and sisters of the abused woman may feel intervention inappropriate’.20 6.06 In cases where eyewitnesses are either reluctant or unavailable to come forward to testify (and there are many), judges have been reluctant to address domestic violence in their rulings. Subject to heavy scrutiny from the upperlevel courts, these judges do not want to issue any decisions without strong evidence. There are good reasons for judges to exercise caution in this area of law, with self-preservation perhaps the biggest psychological driver. China’s lower-level trial courts have been and still are consistently plagued by a high appeal rate of their judgments. A junior judge can be subject to disciplinary measures or other punishment when adjudicatory mistakes, which are not uncommon, are identified. For example, in 1999, about 50% of trial court judgments were appealed. Among these judgments, only about a quarter (26.6%) of them were sustained.21 According to the current evidence rule, if a victim cannot provide strong evidence (e.g., a medical certificate of the injuries suffered and/or police reports), she is not considered to have satisfied the burden of proof required for convicting an allegedly violent husband. In these cases, most courts

19

Xu (n 3); Xin Xu, ‘Why Do the Judges Not Trust Witnesses?’ [法官為不相信 證人] (2006) 3 Peking University Law Journal (中外法學) 347. 20 Liu (n 15). 21 Jianhua Zhong and Yu Guanghua, ‘Establishing the Truth on Facts: Has the Chinese Civil Process Achieved This Goal?’ (2004) 13 Journal of Transnational Law and Policy 393, 428.

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are left with no options but to disregard the existence of domestic violence.22 6.07 But domestic violence has become an increasingly serious social problem in China, so much so that it has made it onto the official agenda and into the public discourse of the Chinese government. For example, in 2008, Xiaomei SUN, an NPC deputy and professor at the Chinese Women’s College, said: ‘Domestic violence is a social phenomenon that crosses all social strata and is becoming more and more common. There is an urgent need for legislation’.23 In 2010, the state-backed All-China Women’s Federation (ACWF), the largest women’s organisation in China, announced that its branches nationwide received 52,000 petitions from women who suffered from domestic violence.24 It further declared that ‘domestic violence poses a severe threat to women's rights in China’.25 6.08 In response to the newfound attention on domestic violence, Chinese judges are now taking steps to protect women from domestic violence. The court in which we conducted our study, for example, was one of the courts in 10 provinces that participated in a national pilot program

22

Philip C. Huang, Chinese Civil Justice, Past and Present (Rowman & Littlefield Publishers 2010) 133–34. 23 Jiao, X (2008). ‘Call for legislation on domestic violence’, China Daily (web edition) at www.chinadaily.com.cn/china/2008npc/2008-03/13/ content_6532473.htm (accessed 1 June 2012) 24 ‘Court tries woman protection program’ China Daily (Beijing, 23 February 2012) accessed 1 June 2012. 25 ‘Domestic Violence Increases in China’ Xinhua News Agency (Beijing, 7 March 2009) accessed 1 June 2012.

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for issuing protection orders to victims of domestic violence. These orders, modelled on those (protection from abuse orders, restraining orders) commonly used in AngloAmerican law, forbid a husband from coming within 100 meters of the wife’s home. They also forbid the husband from harassing, frightening, hitting or following the wife, her relatives and friends. If the husband violates the order, the court will detain or impose a fine on him.26 6.09 More importantly, judges are more becoming proactive in proving the existence of domestic violence, usually by getting the abuser to confess. The biggest structural hurdle, as the rest of this chapter will demonstrate, is the conflicting demands created by the in-trial judicial mediation procedure in resolving family disputes, including divorce petitions.

(3) Methodology 6.10 The episodes analyzed in this chapter are taken from trials that we attended in December 2011 at a district court in City Z in Southern China. Located at the heart of the Pearl River Delta, the most affluent region of the country, the city’s GDP per capita reached USD $11,000 in 2010. It has thus attracted a large number of migrant workers, who come from the hinterland areas of the country for a better life. Of the 800,000 people in the jurisdiction of the trial court in which our sampled trials were heard, a total 300,000 of them were registered migrants. While the official language is Mandarin, a significant portion of the population speaks Cantonese as their everyday language.

26

‘Court tries woman protection program’ (n 20).

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6.11 Our data come from three different sources. The first and main source is our direct observation of divorce trials in action. Having gained access to the court through a personal connection, we observed the trials of a designated family court for about a month. The designated family court consisted of three judges: two regular women judges and a male judge seconded from a nearby county court to help clear the accumulated caseload. Comparing to common law trials, which can last for weeks, even months, civil trials in China generally proceed at a crisp pace. It typically takes one court session, ie, a half day, to commence and conclude a hearing. Some trials are shorter than others. We saw trials that were quickly wrapped up in around 10 minutes (e.g., when the defendant did not show up). That said, a typical hearing took up about one to two hours. We observed about 20 hearings during the period of our study, of which about a third allegedly involved domestic violence. 6.12 Tape recording of proceedings is not allowed in the courtrooms of China. During our fieldwork, we relied mostly on our written notes. The relative short sessions made extensive note taking a less exhausting exercise. Toward the end of our fieldwork, the local judiciary kindly agreed to make available to us copies of official court transcripts of a number of trial sessions we had attended. The transcripts were prepared by court clerks who worked with judges. The transcripts used below are based on our own written notes and the official transcripts.27

27

In the interest of space, we reproduced only the English translation of the transcripts. The transcripts in the original Chinese (Mandarin and Cantonese) are on file with the authors.

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6.13 The second part of our data consists of our interviews with judges. We interviewed the judges who presided over the trials we observed. We were also able to interview other judges who had handled divorce hearings in their career, as well as court administrators and researchers who could provide us with information about the new judicial initiatives to address domestic violence. The interviews provided us with useful background information about why judges asked certain questions and what evidence most influenced their decisions. We asked them, among other matters related to China’s civil justice system, about their views on the existing practices of in-trial mediation. In some cases, we discussed with them certain specific trials we observed. As a group, they were candid and open about their opinions on the performance of the parties, the weight they gave to certain evidence, and their rationale for the decisions they reached. The interviews lasted from between 30 to 90 minutes. 6.14 Our field site is a compelling setting in which to study how domestic violence is handled as a legal problem in China. As mentioned, the county court we studied was among one of the courts in the national pilot program to reinforce protection for women against domestic violence. For our third data source, in an effort to discern the general applicability of our findings, we interviewed (mostly by phone) experienced family court judges in different parts of China, including the provinces of Jiangsu, Guangxi, Zhejiang, and Shaanxi. All these findings are integrated with secondary data collected by others on this topic.28

28

Eg, Wu (n 8) and Huang (n 19).

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(4) Judicial Mediation 6.15 For a country as populous and fast-changing as China, its civil procedure is highly unified and homogeneous. The same set of procedures applies across different parts of the country. If one attends a civil trial in China today, the presiding judge will announce at the beginning of the process that a civil trial consists of four stages: court investigation, court discussion, court mediation, and decision announcement. Each of the different stages is part of the civil trial process. The judge thus serves as both adjudicator and mediator at different stages of the trial. In most trials, mediation takes place right after the court investigation and discussion, within the same court session (usually lasting a morning or an afternoon). 6.16 The current Civil Procedural Law stipulates that the court may or may not conduct mediation after court discussion. But for family cases, mediation remains a compulsory procedure and litigants are required to participate. This is primarily because, as mentioned earlier, mediation has long been regarded as a way to mitigate family conflicts and contribute to family and social harmony. This emphasis has intensified since 2004, halfway through the Westernstyle civil procedural reforms initiated by the former SPC president Yang XIAO. The party and higher-ups believed that the Western style of judicial reforms had gone too far: they believed that the reformed judiciary did not really resolve disputes, even though many cases could be said to have been adjudicated with a higher degree of procedural fairness. They also believed that the skyrocketing number of petitions (shangfang) was a result of the incompetency of the judiciary. The policy response was for the

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judiciary to renew its reliance on the role of mediation.29 Accordingly, courts have been revising their incentive mechanisms to encourage judicial mediation.30 As a result, many courts, including the court that we visited, have been requiring their judges to settle, through mediation, a certain percentage of cases they handle. The ratio of cases being closed with a mediated settlement has become a criterion by which to assess a judge’s performance. There is also competition among courts for higher overall mediation rate. Henan High Court, for instance, even claims that their goal is to achieve zero adjudication, meaning that all the cases received by the courts would be resolved with mediated settlements.31 6.17 Pressure from senior court administrators aside, some judges do prefer mediation to adjudication: enforcement becomes less of a concern when parties agree to settle as a result of mediation; there is no risk of a decision being appealed, since the result is agreed upon by the parties; judges are spared the effort of writing a judgment. Of course, many judges also believe that both parties are better off with a settlement. All these considerations compel judges to adopt a heavy-handed approach with litigants at in-court mediation sessions. As a consequence,

29

Hualing Fu and Richard Cullen, ‘From Mediatory to Adjudicatory Justice: The Limits of Civil Justice Reform in China’ in Margaret Y. K. Woo, and Mary E. Gallagher (eds), Chinese Justice: Civil Dispute Resolution in Contemporary China (Cambridge University Press 2011) 25–57; Vicki Wayne and Ping Xiong, ‘The Relationship between Mediation and Judicial Proceedings in China’ (2011) 6(1) Asian Journal of Comparative Law 2. 30 The SPC Provisions on Court’s Civil Mediation Work in 2004 provide that ‘all cases that can be mediated should be mediated.’ 31 Shizhong Peng, ‘Nengdong sifa shiyexia minshi tiaojie gaige de jingxiang xuanze’ [Paths of the Civil Mediation Reform from Judicial Activism Perspective] (2011) 1 Jinan xuebao (zhexue shehui kexue ban) [Journal of Jinan University (Philosophy and Social Sciences)] 52–58.

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the percentage of civil cases resolved through mediation in China has increased, while the rate of adjudication has decreased from 43% in 2002 to 31% in 2010.32

(5) Evidence: The Focus of Court Investigation 6.18 It is in this context that we consider the behavior patterns of the judges in divorce hearings. Trials in China are judge-centered. Until recently, it was the judge alone who wielded fact-finding power. But the courts nowadays rarely collect evidence outside the courtroom.33 There are many reasons why judges today do not want to initiate out-of-court investigations of their own, some ideological and some practical. Ideologically, China’s courts are shifting to a judicial philosophy of dangshiren zhuyi (litigant’s choice). Courts have now gradually passed the responsibility of proving a case to litigants. Practically, there are many reasons why judges want to avoid out-of-court investigations — ever-increasing caseloads, limited human and financial resources, the pressure to boost efficiency by closing a case within a relative short timeframe. Judges now engage in a limited form of cross-examination aimed at obtaining oral testimony that can be used to justify a decision. This kind of judge-initiated questioning thus becomes an inexpensive substitute for the previously laborintensive court investigation. In other words, the court investigation stage offers judges an important opportunity to collect evidence that forms the basis of their later adjudicative decisions, if a settlement cannot be reached.

32

China Law Society (n 2). Xin He, ‘Routinization of Divorce Practice in China: Institutional Constraints’ Influence on Judicial Behavior’ (2009) 23 International Journal of Law, Policy and the Family 83–109; Huang (n 19); Woo (n 10).

33

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The evidence on which their potential adjudicative decisions are based must be strong enough to safeguard the judges from any potential liabilities for wrongfully decided cases. 6.19 When domestic violence is alleged, it is the responsibility of the judge to gather evidence to validate the claims. An allegation of domestic violence is usually denied or refuted by the husband. But a judge, for the purpose of collecting evidence, is willing to confront the litigants in this process. The excerpt below is taken from a case we observed where domestic violence was alleged by the wife as grounds for divorce: [Judge] On the very early morning of the 25th of September, 2011, is it true that you hit her? [Defendant] (pause) What do you mean by hitting? I don’t know. Hitting means… [Judge] Didn’t I just show this to you? She said you used your fists, and a solid object, a folding chair that was, to hit her back. She was at pains. Then she called the police. The police gave you a warning when they arrived. [Defendant] No, no, no, I didn’t hit her. At the time, we were fighting with each other. [Plaintiff] The police then… [Defendant] We were fighting with each other! We were fighting with each other! [Judge] Fighting with each other? But did you hit her back with that folding chair? [Defendant] Just to scare her. [Judge] Was her back hurt? [Defendant] This I’m not sure. [Judge] (turning to the court clerk) Scared her. Then I asked him if the plaintiff’s back was hurt, he said he didn’t know.

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[Judge] (turning to the defendant) Afterwards, the police were at your home, right? [Defendant] Yes, at my home. [Judge] What did the police do when they got to your home? [Defendant] They asked a few questions; and then told us not to argue again. They asked us not to argue about little things. They kept a record of our names and then they left. [Judge] So on that day, did you hit her or not? [Defendant] I did not hit her. We were fighting with each other. 6.20 This is a disturbing, and yet unfortunately, not too uncommon case that one finds in the family courts of China today. During the trial, the plaintiff, a low-educated ‘rural wife’ was emotional. She claimed that her husband had beaten her and their son over 600 times during the course of their marriage. She struggled to maintain her composure. She testified in a wailing voice, recounting the violence inflicted on her. The air was heavy inside the courtroom. It was a difficult experience for the audience as well. As shown in the above conversation between the husband and the judge, the husband denied he used violence. He described what happened as duida in Chinese, meaning ‘fighting with each other’. The judge tried to see if there was any police report that might constitute strong evidence against the defendant. But apparently the police just made a routine visit and then left without investigating the incident in detail. Without a police investigation, the case turned on the evidence the wife produced through her testimony. Apparently, the judge was of the view that the oral testimony of the wife alone did not carry enough weight to warrant factoring in domestic violence in her decision on the divorce petition. In a bid to draw out more

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damning details from the man, the judge launched a series of probing questions to get the defendant to acknowledge the use of violence: [Judge] Have you ever choked her? [Defendant] As for choking, I did that when she hit me; I feared that she would hit me back. [Judge] (turning to the clerk) I asked him if he ever choked the plaintiff. He said he did, for fear that she hit back. (turning to the defendant) How long did you choke her? [Defendant] I guess it was about five seconds. Four or five seconds. [Judge] When you choked the plaintiff, what was her reaction? [Defendant] She hit me with her hands, or sometimes kicked me. [Judge] And have ever choked your son? [Defendant] I did. Yes, yes. [Judge] (turning to the clerk) The plaintiff resisted. Choked his son. (turning to the defendant) When you choked her, was she not able to breathe? [Defendant] No. [Judge] How many times did you choke your son? [Defendant] Probably once or twice. [Judge] What about the plaintiff? [Judge] It’s about the same. [Plaintiff] Tell the truth. [Defendant] I told the truth. [Plaintiff] Tell the truth about what you did to our son. Tell the truth about what you did to me. Don’t say it was just twice! Don’t say things that contradict your conscience. [Defendant] We lived together for twenty-odd years. How much have I done for you? What have you

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done for me? [Plaintiff] You should tell the judge. [Judge] How many times have you choked the plaintiff? [Defendant] Twice. 6.21 This excerpt shows how the judge tried to prove the wife’s domestic violence claim through a form of crossexamination commonly seen in the civil courts of common law jurisdictions. In interviews with us right after the court trial, the judge said choking is serious — lifethreatening — and once a husband did it to his wife, he tended to repeat it, and later incidents of choking often resulted in even greater violence against the wife. From the judge’s perspective, choking, if admitted or proven, constituted a strong piece of evidence for domestic violence claims. To make the case beyond reproach, the judge asked the husband how many times he had choked his wife and his son. The judge was also meticulous in asking how long the man choked his wife and son during these incidents. The judge was doubtful that the man told the truth. Upon hearing his testimony, his abused wife was emotional and asked him not to contradict his conscience. The man tried to downplay the severity of these choking incidents — he said they happened once or twice and each time they lasted for just four, five seconds. Above all, the man insisted, they happened not as brute violence against his wife, but as his way of defending himself in a fight with a woman who was trying to hit him hard. As the judge told us afterwards, from the perspective of law, what the man admitted was enough to prove domestic violence. The judge was so careful that more than once she instructed her court clerk what to put down in the court records, which will be signed by both litigants, in ways that capture the gravity of the man’s testimony: ‘He admitted he choked her; and

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he also choked his son.’ The judge carefully rephrased the defendant’s language to align the man’s testimony with the relevant facts that constitute the legal definition of domestic violence, an important technique as identified by MATHER and YNGVESSON.34 6.22 The judge did not stop there. She inquired about another incident in which the wife claimed that the husband took her away from work and threatened to tie her up and abuse her. 6.23 The judge once again tried to retrieve the details of the incident by questioning the defendant. [Defendant] I went to her unit to see her then. At the time, she had left home for seven days. I went to her unit to pull her out from her work because I wanted her to come back home. Come back home; whether we were to divorce or stay together, we could discuss later. Come back home first. But she was dragging out the discussion. She said this and she said that. I was angry. I faked hitting her. But it happened at the work unit. I didn’t know who reported to the police. She was away from home for seven days then. [Judge] You said you pulled her out from her work, right? What next? [Defendant] Yes, we took the taxi to get home. [Judge] Took the taxi. And then you dragged her back home? [Defendant] I didn’t drag her back home. She left

34

Lynn Mather, and Barbara Yngvesson, ‘Language, Audience, and the Transformation of Disputes’ (1980–81) 15 Law and Society Review 775–821.

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her work to her colleagues, then returned home. And then I followed her back home. But then we went back and forth with several taxis. Back and forth. It was a hassle. 6.24 In our interview with her, the judge said although the wife claimed that there were witnesses and video recordings, she was unsure if the additional oral and material evidence would be made available to the court. But the judge’s questions to the husband resulted in sufficient evidence. In another instance, the judge got the defendant to admit that the couple changed taxis several times back and forth on the day he pulled his wife from her workplace. The judge said the fact that the couple changed taxis was another piece of good evidence to corroborate the domestic violence claims. In her opinion, it was difficult to explain why the couple had to change taxis and went back and forth on the trip. The judge argued that this strongly suggested that the wife was resisting her husband’s attempt to carry her away from work and physical violence was likely involved. While the judge did not undertake a fullfledged cross-examination, she sought to, within the limited time available in a Chinese civil trial (as mentioned, which normally last half a day in a busy court like the court we studied in City Z), build a case through oral testimony. 6.25 The analysis above identifies several points, which are also supported by the data we gathered from the other cases we observed. First, contrary to the common stereotype that many low-educated women in China are too acquiescent to defy their husbands in public, the women who appeared in the trials we observed seemed to have no trouble telling the judge that they had been victimised by their abusive husbands. Indeed, some of them were eager to tell the judge, for legal as well as cathartic reasons. Many were

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prepared to address domestic violence issues directly in court. In the above case, the woman plaintiff addressed in detail the severity of violence against her. Our data seems to suggest that once women have decided to undertake legal action, they have little difficulty in overcoming the stigma of talking about ‘family matters’ in public. In our interviews with the judges, they said they believed some women plaintiffs thought strategically. Some women believed that proof of domestic violence might help them obtain a quick divorce decision; some women believed that a violent husband would lose child custody; others believed it provided leverage for getting a favourable division of marital property. But judges acknowledged that some women simply wanted to shame their husbands, or relieve their fear and frustration in public. For these various reasons, women plaintiffs often raised the issue of domestic violence during the court investigation stage of a trial. The problem facing these women was that they did not know how to, as it were, produce evidence and give testimonies in court. Many of them were not represented by lawyers. Even when represented, they usually did not have the required documents (police report, medical records, or their own written statements made at the time when they were abused) necessary for the purposes of the law. 6.26 Second, as a result of the virtual abandonment of out-ofcourt investigations, the in-trial court investigation stage is becoming more important for judges in proving domestic violence. It remains the discretion of a judge whether she wants to ‘cross-examine’ an alleged abuser or not, but for those judges who do, it is clear that in-trial court investigation has become a judge’s main weapon to prove or disprove unresolved allegations of domestic violence.

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6.27 Third, the role of a judge depends heavily on the person’s skills and willingness to collect evidence. As shown in the above case, for example, the judge went beyond the neutral role of assessing evidence, and played an active role in collecting evidence. This was within the range of Chinese procedural law, but it would also have been equally lawful had the judge simply dismissed the domestic violence claim on the ground that the plaintiff was not able to produce evidence herself. In this case, the man gave testimony that the judge considered sufficient for proving domestic violence. In taking a proactive role, the judge’s effort to collect evidence in the court investigation stage offered the domestic abuse victim a chance for protection she might not have gotten with another judge. 6.28 A proven domestic violence allegation has significant consequences for the plaintiff and her family. Not only is it more likely for the plaintiff to get a favourable divorce settlement and win the child custody battle, she also receives protection by the court from her husband’s future abuses. The court that we studied could issue a protection order to remove the husband from his home and prevent him from seeing his son or even talking to his wife. Unfortunately, the evidence collected in this stage, as we will show, is erased in the court mediation stage when the focus then is to work out a solution.

(6) Solution: The Focus of Court Mediation 6.29 The role of the judge in the court investigation stage differs greatly with her role in the mediation stage that immediately follows. From the perspective of the judge, while the focus of court investigation is to collect evidence, the focus of mediation switches to achieving resolution:

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the goal of the judge here is to find a middle ground that both litigating parties will agree to. If the key question that dominates the investigation stage is ‘Did you commit what she accused you of doing?’, the key question at the mediation stage is ‘Do you accept this proposed solution?’ 6.30 In the divorce case we detailed in the previous section, there was too much animosity between the couple for any meaningful mediation to take place. In her judgment, the judge ruled that the man was responsible for compensating the woman for the physical abuses she suffered. But other cases were not as clear-cut. In fact, of the divorce petition cases that we observed during our fieldwork, this was the only case in which domestic violence was addressed in the judge’s decision. Of the other four cases where domestic violence was alleged, the issue was ignored and discounted because these cases went through intensive in-court mediation. Many couples were willing to go through judgedirected mediation, not so much because they wanted to stay together again, but more because there was still much left to negotiate with their estranged spouse. For many uncontested divorce cases, there is little doubt that divorce will be the eventual outcome; people do not generally file divorce petitions unless they want a divorce. Under the current de facto no-fault rule governing divorce,35 the petitioner will get his or her wish fulfilled sooner or later. Indeed, as co-author Xin HE found in another court in Guangdong province, the number of divorce petitions approved is three times as much as those petitions denied.36 It is, quite simply, only a matter of time. The mediation

35

Huang (n 19); Davis, D (2010). ‘Who gets the House? Renegotiating Property Rights in Post-Socialist Urban China’, Modern China 20, 1–30 36 He (n 29).

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session focuses on the partition of child custody and marital property. In so doing, it is almost inevitable that the question of domestic violence, which is almost invariably denied by the abuser, is erased. As shown, when domestic violence is examined during the court investigation stage, the litigation parties are confrontational. It is common for parties to trade accusations, curses, and denials. If, during mediation, the judge still focused on the issues of the investigation stage, including domestic violence, lingering investigations would undermine the reconciliatory tone required to facilitate successful settlement. It is for this reason that erasure is a consequence of mediation. 6.31 That is exactly what happened in another case we observed in which domestic violence was alleged but was not subsequently followed up with in the mediation stage of the trial. This was a divorce case in which the couple had been separated for some years; the husband was currently living with another woman. There was no disputing that the husband had committed domestic violence and had had extramarital affairs: the wife provided police reports and pictures of bruises. The two agreed to divorce; their disputes were mainly about how to divide up their communal unit and their responsibilities towards their son. The 13-year-old son had been living with his mother. As in many other divorce cases, the estranging husband and wife fought over various accusations in the court investigation process. The atmosphere was tense and confrontational in the first hour of the trial. As if she intended to prevent the confrontation from escalating, the judge quickly moved to mediation without formally announcing that the investigation and discussion stages were over. In fact, she did not formally ask the two parties if they would agree to participate in mediation, as most judges would ask at the end of the court discussion. She started working on a

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settlement right away, as she knew the two sides had no intention to linger in their failing marriage. After about 30 minutes of negotiations back and forth with the couple, the judge managed to work out a number that indicated the sum of money the wife would get in renouncing her half of the property. Eventually the judge persuaded the two sides to agree to adopt the number (200,000 yuan) as the basis of their settlement. Besides the disagreement over dividing the communal property, the couple also disagreed over child support. The plaintiff was willing to pay 500 yuan per month, but his wife, the defendant, wanted more. She asked for monthly child support of 800 yuan. The judge quickly decided that she would try to get the two sides to settle on 600 yuan. To the judge’s surprise, the plaintiff refused to raise his offer to make up the 100 yuan (approximately USD $15 per month) difference. This put the judge in a tough spot. She had already let both parties know a compromise figure she found acceptable, knocking down the wife’s request of 800 yuan by 200 yuan. She thought this could get the deal done. But the plaintiff’s recalcitrance created an impasse. 6.32 In order to get the deal done, as we detail elsewhere,37 the judge marshaled all sorts of resources available to convince the man. She mentioned the money would be used to support his son, not a stranger; she also mentioned that as his son was already 13 years old, the overall amount of support was not a big sum because the man was only responsible for supporting the child till the age of 18. The judge even challenged the truthfulness of the man’s salary, which according to the law, was used as the basis for calculating the amount of child support; she preached to the man that it was his duty as a father to support

37

He and Ng (n 9).

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his son. What is most revealing for our purpose here is that the judge never mentioned a word about domestic violence. Should the man not have been held responsible for his abusive behavior, as stipulated by Article 46 of the amended Marriage Law? Was that not an excellent leverage to force the man to agree to raise his child support by 100 yuan? 6.33 In another case documented by WU, the wife repeatedly raised the issue of domestic violence and presented police reports that she suffered light injury.38 The husband denied the link between the injury and his behavior. Below is an excerpt of a private conversation between the judge and the wife during mediation in the absence of her husband and her family. Wife: I dared not disclose anything to anyone outside of the family. Sometimes I was all beat up and bruised. But when other people asked me how I got my bruises, I just told that was because I fell. I dared not even tell the truth to my own parents. Judge: If both sides can reach a settlement, we will ask you to sign the mediation agreement. If not, the court will adjudicate. We will try our best. The mediation ends here. 6.34 This conversation shows that the judge did not even take up the topic of domestic violence raised by the wife. In mediation, as the term suggests, the two parties try to arrive voluntarily at a resolution. The judge, now acting as a mediator, removes the adjudicatory frame that looks for fault and denounces wrongful behaviors. The rights-

38

Wu (n 8) 277–281.

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based focus that prevailed at the investigation of domestic violence is now superseded by the need-based focus of mediation.39 In this case, the judge, in order to achieve a mediated result, was extremely careful in maintaining a less antagonistic atmosphere. Further allegations of domestic abuse would have simply invited more denials or refutations from the man and compromised her efforts to mediate. In other words, to get a mediation result, the judge had to exclude blame from her discourse. 6.35 Evolving from court investigation to court mediation thus involves a process that COBB calls ‘transformation’.40 In the court investigation stage, the rules are legal, focusing on rights and obligations, based on the availability of evidence; in the court mediation stage, the rules are mediatory, focusing on needs. In the mediation session, the mediatory rules soon gain dominance and expand their authority and jurisdiction, crowding out concerns for legal rights and moral blaming. COBB points out, ‘[t] he goal of mediation is to reach agreements, to meet the needs of individuals, not instantiate a moral code. In fact, mediation is designed to subsume moral differences by colonising competing moralities: There is no “right” way to live, except that morality which permits and enforces relativism’.41 6.36 Also, as demonstrated by Fineman in her analysis of custody mediation, the rights of parents are collapsed into the needs of the children through the discourse fostered

39

Sara Cobb, ‘The Domestication of Violence in Mediation’ (1997) 31(3) Law and Society Review 397-438. 40 Cobb (n 35). 41 ibid 413.

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by the ‘best interest’ doctrine.42 Because the goal of mediation is to reach agreements, it has to meet the needs of the individuals and the overall discourse is pragmatic.43 Indeed, as SILBEY and SARAT note, mediation legitimates itself as a practice by distinguishing between rights and needs: rights discourse is suitable for formal settings in which hierarchy and power are at issue; needs discourse is suitable for mediation where it is not power but participation that is at issue.44 The mediation session offers a setting for both disputants, as co-participants with equal social and legal status in the resolution of conflict. In this process, any violence (including domestic violence), especially that which is still in dispute because of lack of evidence, is sidelined in favor of other, more high priority mediation goals.

(7) Conclusions and Implications 6.37 Western researchers have found that in communitybased mediation sessions, domestic violence is often

42

Martha L. Fineman, ‘Dominant Discourse, Professional Language and Legal Changes in Child Custody Decision-Making’ (1988) 101 Harvard Law Review 727–74. 43 Xin He and Kwai Hang Ng, ‘Pragmatic Discourse and Gender Inequality in China’ Law & Society Review (2013 forthcoming). 44 Susan S. Silbey and Austin Sarat, ‘Dispute Processing in Law and Legal Scholarship: From Institutional Critique to the Reconstitution of the Juridical Subject’, (1989) University of Denver Law Review, Volume 66, No.3, p. 437– 498.

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domesticated.45 By ‘marginalization’, GREATBATCH and DINGWALL mean that violence reports are ‘ignored or minimised’, and events are framed as ‘relational as opposed to criminal’.46 The situation is no better in court-based mediation programs. As TRINDER, FIRTH and JENKS’ discovered in their 2009 study of the English system, family justice professionals continued to marginalise allegations of domestic violence, and some even turned punitive in cases where women insisted on the issue.47 This chapter shows that in China, despite the fact that the issue of domestic violence is raised, discussed, and even established in the court investigation process, it is eventually forgotten, often unnoticed in the court’s final mediation session. If anything, the situation in China is more serious, for two reasons. First, since it is the judge who mediates in China, she is in a position to more proactively ignore allegations of domestic violence. Compared to ‘marginalization’48 or ‘domestication’,49 the erasure of domestic violence in China is more coercive; this is in part due to the obvious power gap between the judge and the disputants. Judges are aggressive and proactive in setting a mediatory tone, compared to the more subtle handling by mediators in community mediations. Second, from the perspective of the victims, the process is somewhat deceptive because judicial mediation takes

45

Janet Rifkin, ‘Mediation from a Feminist Perspective: Promise and Problems’ (1984) 2(1) Law and Inequality 21; Cobb (n 35); Greatbatch and Dingwall (n 12); Lerman, L. G. (1984). ‘Mediation of Wife-Abuse Cases: The Adverse Impact of Informal Dispute Resolution on Women’, Harvard Women’s Law Journal 7, 57–113; Sarat, A. and Kearns, T. R. (1991). ‘A Journey through Forgetting: Toward a Jurisprudence of Violence’ in A. Sarat and T. R. Kearns (eds), The Fate of Law, Ann Arbor: University of Michigan Press. 46 Greatbatch and Dingwall (n 12) 187. 47 Trinder, Firth and Jenks (n 12). 48 Greatbatch and Dingwall (n 12). 49 Cobb (n 35).

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place within a framework of adjudication.50 Victims who choose to settle might think they have found legal redress, when in fact they have unknowingly surrendered their legal rights in agreeing to a mediated deal. Moreover, by agreeing to a settlement reached in judicial mediation, they close out other legal remedies; since mediated settlement agreements cannot be appealed, there is no other recourse. The Chinese government has finally come to realise the seriousness of domestic violence as a social issue. However, its judicial infrastructure, caught between the conflicting goals of achieving efficiency and protecting the socially vulnerable, is structurally incapable of addressing the issue in a systematic and comprehensive way. 6.38 During the past decade, the use of mediation to resolve civil disputes, including divorce petitions and other family disputes, has steady raised in China. Official statistics shows that in 2010, more than 65% of civil cases were resolved through mediation or were withdrawn. What we have described here is part of a bigger trend. We have discussed this wider phenomenon and its implications to the rule of law in China elsewhere.51 Here, our findings suggest that family violence factored into a judge’s decision only in the most egregious cases. As mentioned, of the about 20 cases we observed, the case we analyzed above was the only one we observed where the judge brought up and addressed the issue of domestic violence in her judgment. For the other handful of cases in which allegations of domestic violence were made, the issue was marginalised and overlooked in the process of mediation. This phenomenon is also consistent with findings from other regions.52 This shows how substantive concerns over domestic

50

He and Ng (n 9). He and Ng (n 9). 52 Wu (n 8). 51

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violence are sidestepped and superseded by the administrative preference for mediation over adjudication. Furthermore, the fact that the court we study was participating in China’s national pilot program for protecting women against domestic violence seems to suggest that other courts might bestow even less attention to the issue. 6.39 Our findings thus seriously challenge the practice of judicial mediation in China and particularly its use in family cases. In China, mediation is a compulsory requirement for family law-related cases, whether or not the litigants want to participate in the process. The compulsory requirement is justified by the belief that mediation creates a less antagonistic environment that reduces further disputes and favours resolution. It also encourages disputants to consider the best interests of the most vulnerable party, i.e., children of divorced couples. More mediation and less litigation is also said to promote social stability. This justification seems so powerful that it is seldom questioned or challenged in the context of China. Our study reveals a significant problem of the current practice: victims of domestic violence are paying a heavy price for what is seemingly a well-intentioned procedural arrangement. While it is unclear whether judicial mediation indeed realises its goals, it is clear that the rights of victims of domestic violence are compromised. To avoid such undesirable consequences, the current compulsory requirement should be abandoned. Furthermore, in line with what some scholars have suggested, a certain screening system could be introduced to screen for and keep cases involving family violence out of mediation.53 At

53

M. Hester, C. Pearson, and L. Radford, Domestic Violence: A National Survey of Court Welfare and Voluntary Sector Mediation Practice (Policy Press 1997); Trinder, Firth and Jenks (n 12).

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the very minimum, the victims of domestic violence going through the mediation process should be formally warned of such a consequence. 6.40 By the same token, policymakers should also seriously consider whether judicial mediation should be allowed in other types of cases in which violence is involved. There is a tendency in China’s judicial practice to reconcile attackers and victims in personal tort and even criminal cases.54 Whether or not the issue of violence is also erased in mediations of other types of cases awaits further research. For victims of domestic violence seeking divorce, our study cautions strongly against any congratulatory view of mediation as a cure-all social panacea.

54

Ruihua Chen, ‘Private Cooperation in Criminal Procedure’ [刑事訴訟的私力 合作模式] (2006) 5 Zhongguo faxue [China Legal Science] 15–31.

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The Islamisation Phenomenon and the Rule of Law in Malaysia1 Hoong Phun LEE2

(1) Introduction 7.01 This chapter addresses a phenomenon that, although focused on the country of Malaysia, should be of considerable interest to a number of western democracies that have been concerned with ‘Islamism’ or ‘Islamisation’ and how it interacts with western notions of constitutional rule, with emphasis on the rule of law and constitutionally entrenched guarantees of fundamental freedoms. 7.02 The issue of Islam and the Constitution in Malaysia has become ‘a crucial aspect of political debate’.3 One conspicuous feature of the phenomenon is that the Malaysian state itself is at the forefront of the Islamisation process as ‘its chief architect, orchestrating, shaping and

1



2



3



This chapter is based on the text of a lecture entitled ‘Mosque and State in Malaysia – The Blurring of Constitutional Boundaries’, presented at the Law School, University of Queensland on 24 August 2012. The author is the Sir John Latham Professor of Law at Monash University, Victoria, Australia Andrew Harding, ‘The Keris, The Crescent and the Blind Goddess: The State, Islam and the Constitution in Malaysia’ (2002) 6 Singapore Journal of International & Comparative Law 154, 164. A detailed study of the Islamisation phenomenon from a legal perspective can be found in K. S. Choo, ‘Islamization in Malaysia: The Constitutional and Legal Dimensions’ (PhD thesis, Monash University, 2012).

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harnessing Islamisation as it rejects secularism’.4 Today, the boundaries between Islamic strictures and the operation of constitutionally entrenched fundamental guarantees are becoming increasingly blurred, and Malaysia has become an important crucible in which the contradictions are played out. It has been said: ‘Conceptually, the contours of Islamism in Malaysia capture the complexities that … are expressed in longstanding debates over the compatibility of Islam with democracy, the relationship between Islamists and the state, and the nature of Islamist commitment to mainstream political processes.’5

(2) The Evolution of the Malayan/Malaysian Constitution 7.03 Malaysia is undoubtedly a diverse society. Its population at 2010 was reported to be 28.3 million of which 91.8% were Malaysian citizens and 8.2 % were non-citizens. The ethnic groups were comprised of Bumiputera6 (67.4%), Chinese (24.60%), Indians (7.3%), and others (0.7%).7 Its diversity of religions is as follows: Islam (61.3%), Buddhism (19.8%), Christianity (9.2%), Hinduism (6.3%).8 The languages in the country are Bahasa Melayu (official), Chinese (various dialects), English, Tamil, and indigenous. Muslims in Malaysia are followers of the Sunni sect (the Shafi’i school).

4



5



6

7



8



Joseph Chinyong Liow, Piety and Politics — Islamism in Contemporary Malaysia (Oxford University Press, 2009) 192. Liow (n 4) 178. “Bumiputra” (translated as “sons of the soil”), as an ethnic group, was coined to embrace the Malays (the predominant ethnic group in Peninsular Malaysia) and certain non-Malay indigenous peoples of Malaysia.

accessed 25 June 2013. ibid.

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7.04 The Federation of Malaya attained its independence from British colonial rule in 1957. It was then a federation of 11 states. It was in 1963 enlarged into the Federation of Malaysia with the addition of the two states of Sarawak and Sabah (originally known as North Borneo) and the self-governing colony of Singapore. In 1965, Singapore was ejected from the federation. Of the current 13 states in the federation, nine of them have a respective hereditary ruler generally referred to as Sultan. 7.05 The Federation is governed under a constitution drafted by a constitutional commission headed by Lord Reid, who was regarded as one of the most eminent jurists of his time. Sir Ivor Jennings, a renowned jurist from Cambridge, played a key role in the drafting of the Constitution. Australia also had a hand in the crafting of the Constitution as one of the members of the commission was Sir William MCKELL, a former governor-general of Australia. The other members were Justice B MALIK (India) and Justice Abdul HAMID (Pakistan). The commission was entrusted with the task of drawing up a governing instrument to provide for ‘a federal constitution for the whole country as a single, self-governing unit … based on Parliamentary democracy with a bicameral legislature’.9 7.06 General Framework of the Constitution. The legislative powers of the federal and state legislatures are set out in the Merdeka Constitution. The list of federal legislative powers enumerates those matters that only the federal Parliament can legislate on, while the state list enumerates those matters with respect to which the state legislatures can make laws. Of the matters set out in the state list, the

9



Federation of Malaya Constitutional Commission, ‘Report of the Federation of Malaya Constitutional Commission 1957’ (Reid Commission Report) (H M Stationary Office, 1957) para 3.

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most significant is ‘Muslim law’. A third list, the concurrent list, sets out matters on which either the federal Parliament or any state legislature can legislate. In the event of a clash between federal and state legislation, supremacy is given to federal legislation. 7.07 The compartmentalisation of legislative, executive and judicial powers resembles the drafting schemes of the postWorld War II constitutions of countries liberated from British colonial rule. 7.08 One autochthonous feature of Malaysia’s government is a rotating kingship. The nine hereditary Sultans elect from amongst themselves one paramount ruler, the Yang diPertuan Agong, of the Federation. This King holds office for five years. Each of the hereditary state rulers is head of Islam in his state. In the case of Penang, Malacca and the Federal Territories, the King is the head of Islam. 7.09 In the course of drafting the constitution, a change pertaining to Article 3 — which was then described as ‘innocuous’ — has now become a bone of contention and central to the Islamism cause. 7.10 Some Key Provisions. Article 3(1) declares ‘Islam is the religion of the Federation’ but goes on to add that ‘other religions may be practised in peace and harmony in any part of the Federation’. 7.11 The principle of equality is contained in Article 10. 7.12 Article 11(1) guarantees the right of ‘every person’ to ‘profess and practise his religion and, subject to Clause (4), to propagate it’. The right to propagate is restricted as laws made by a state or federal laws in the case of the federal

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territories may restrict the propagation of any religious doctrine or belief among Muslims. However, proselytising to non-Muslims by members of the Islamic faith is not an offence. 7.13 Under a new Article 121(1A) introduced in 1988, the High Courts and inferior courts ‘shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah Courts’. The incorporation of Article 121(1A) into the Constitution ‘has created continuing legal controversy and public concern over its scope, effects and implications’.10 7.14 Article 160 defines ‘Malay’ by reference to a person who professes the religion of Islam, habitually speaks the Malay language and conforms to Malay custom. Article 160 also contains the following: ‘“Law” includes written law, the common law so far as it is in operation in the Federation or any part thereof, any custom or usage having the force of law in the Federation or any part thereof’. It should be noted that Syariah law is not expressly mentioned in the definition. 7.15 ‘Religion of the Federation’. The Reid Constitutional Commission deliberated on the question of ‘whether there should be any statement in the Constitution to the effect that Islam should be the State religion’11 and said: ‘There was universal agreement that if any such provision were inserted it must be made clear that it would not in any way

10

Li-ann Thio, ‘Jurisdictional Imbroglio: Civil and Religious Courts, Turf Wars and Article 121(1A) of the Federal Constitution’ in A Harding and H P Lee, Constitutional Landmarks in Malaysia: The first 50 Years 1957–2007 (LexisNexis 2007) 197. 11 Reid Commission Report (n 8) para 169.

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affect the civil rights of non-Muslims.’12 The Commission pointed out that the memorandum submitted by the Alliance after stating that ‘the religion of Malaysia shall be Islam’ went on to add: ‘The observance of this principle shall not impose any disability in non-Muslim nationals professing and practising their own religions and shall not imply that the State is not a secular State.’13 It is interesting to note that, as was indeed noted by the Commission, Counsel for the Rulers had said the following to the Commission: ‘It is Their Highnesses’ considered view that it would not be desirable to insert some declaration such as has been suggested that the Muslim Faith or Islamic Faith be the established religion of the Federation. Their Highnesses are not in favour of such a declaration being inserted and that is a matter of specific instruction in which I myself have played very little part.’14 7.16 Justice Abdul HAMID, in a separate opinion appended to the Report of the Commission (Reid Commission Report), supported the recommendation submitted by the Alliance and suggested the insertion of the following provision into the Constitution: ‘Islam shall be the religion of the State of Malaya, but nothing in this Article shall prevent any citizen professing any religion other than Islam to profess, practise and propagate that religion, nor shall any citizen be under any disability by reason of his being not a Muslim.’15 Justice HAMID said that such a provision was ‘innocuous’ and proceeded to point to a number of Christian and Muslim countries that have a provision of this type in their

12

14 15 13

ibid. ibid. ibid. ‘Note of Dissent by Justice Abdul Hamid’, para 11, in Reid Commission Report (n 8).

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constitutions. Thailand was also specifically mentioned by him, as its Constitution requires the King to be Buddhist and uphold Buddhism.

(3) The Growing ‘Islamisation’ Phenomenon 7.17 The hallmark of Islamism is its ‘quintessentially political agenda’ involving ‘the politicization of Islam through the aligning of structures of governance and society with Islamic strictures’.16 In contemporary Malaysia, the ‘phenomenon of islamisation’17 puts into the spotlight the reconciliation of this phenomenon with the Malaysian Constitution, which was crafted as a governing instrument for a multi-racial, multi-lingual and multi-religious society. The general unease of the non-Muslim segment of Malaysian society was aggravated by a stunning pronouncement by Dr MAHATHIR, Prime Minister (1981–2003), on 29 September 2001 that Malaysia was already an Islamic state.18 The assertion provoked a storm of controversy. The unease of the non-Muslim segment of Malaysian society deepened with the endorsement of the pronouncement on 17 July 2007 by Najib RAZAK (then deputy Prime Minister and currently Prime Minister) and its further affirmation on 27 August 2007 by Prime Minister Abdullah BADAWI. 7.18 What does the Islamisation phenomenon involve? Commentators have attributed the growth of this phenomenon to MAHATHIR. His publicly articulated policy of inculcating ‘Islamic values in government

16

Liow (n 4) 6. ibid 17. 18 ibid 82. 17

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administration’ was implemented via a process of ‘Islamisation of the state machinery and bureaucracy’.19 It is now clear that the Islamisation genie cannot be put back into its bottle. The unfolding ramifications have placed great strain on the diverse Malaysian society. Controversies from time to time have arisen which call into question the future trajectory of constitutional development in Malaysia. 7.19 Moral Policing. An episode that occurred in 2009 illustrates the controversial nature of ‘moral policing’ by Islamic authorities. A Muslim part-time model, Kartika Sari Dewi SHUKARNO, aged 32, was sentenced by a Syariah Court to six lashes of the rattan cane and a fine of RM5,000 after she pleaded guilty to drinking beer following a raid on a beach resort in the State of Pahang. At the eleventh hour, the Sultan of Pahang commuted her caning sentence to community service for three weeks. 7.20 In January of 2005, more than 100 plainclothes officers from the Federal Territories Islamic Department (JAWI) conducted a raid on a Kuala Lumpur nightclub and detained a number of young Muslims.20 It was reported that the female detainees were subjected to sexual harassment by the officers and that ‘non-Muslim patrons, including tourists, who were outside the officers’ jurisdiction, also reported being threatened with violence’.21 7.21 The Prohibition of Yoga Fatwa. The National Fatwa Council of Malaysia in 2008 issued a fatwa, or religious

19

ibid 46 Jonathan Kent, ‘Malaysia Club Raid Sparks Row’ BBC News (Kuala Lumpur, 18 February 2005) accessed 4 June 2013. 21 ibid. 20

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edict, which said that young Muslim women should not wear trousers as by wearing them, they risked becoming sexually active ‘tomboys’.22 In the wake of this Fatwa, the National Fatwa Council issued another fatwa instructing Muslims ‘to avoid yoga because it uses Hindu prayers that could erode Muslims’ faith’.23 The chairman of the National Fatwa Council, Datuk Dr Abdul Shukor HUSIN, said that it was ‘inappropriate for Muslims to do yoga and the council has declared that practising yoga when it comes all together with the three elements [physical movements, worshipping and chanting] as haram (prohibited)’.24 7.22 Destruction of Hindu Temples. There has been a spate of demolition of Hindu temples. Local authorities have ordered the demolition of certain temples, which were mainly around the capital, on the grounds that they were illegal structures lacking proper registration and situated on government lands.25 7.23 The Use of ‘Allah’ and the Bible. On 31 December 2009, in Titular Roman Catholic Archbishop of Kuala Lumpur vs. Menteri Dalam Negeri, the High Court lifted a threeyear ban against the Catholic Church using the word ‘Allah’ to refer to the Christian God in its weekly publication,

22

‘Malaysian PM Okays Yoga, Fatwa Council Fumes’ Reuters (Kuala Lumpur, 26 November 2008) accessed 4 June 2013. 23 ibid. 24 Mazwin Nik Anis, ‘Fatwa Council Says Yoga with Worshipping, Chanting Is Prohibited’ The Star Online (Putrajaya, 22 November 2008) accessed 4 June 2013. 25 Zari Bukhari, ‘Temple Demolitions Stoke Malaysian Tension’ Asia Times (Kuala Lumpur, 11 July 2006) accessed 4 June 2013.

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The Herald.26 An initial agreement was in the end reached between the importer of the Bibles and the Home Ministry to include a cross and the words ‘Penerbitan Kristian’ (Christian publishing) on the cover of the bible. However, 5,100 copies of the Bible that were in the Malay language were stamped with the words ‘Peringatan: “Al Kitab Berita Baik” ini untuk kegunaan penganut agama Kristian sahaja. Dengan perintah Menteri Dalam Negeri’ (English translation — ‘Reminder: This “Al Kitab Berita Baik” is for the use of Christians only. By order of the Home Minister.’) together with a space for serial numbers on the cover without the consent of the importer, Bible Society of Malaysia.27 7.24 Constraints on Religious Freedom of Non-Muslims. Christians in Malaysia have to surmount obstacles in order to exercise their constitutional guarantee to profess and practise their religion. The Wall Street Journal recently reported that Christians in Malaysia wishing to make a pilgrimage to Jerusalem are confronted with difficulties. The Malaysian authorities have placed a quota of 20 pilgrims per group, although prior to 2009 there were no limits. Furthermore, each church is only allowed to send one group per year. Ostensibly, according to the authorities in Malaysia, Malaysia has no diplomatic relations with Israel.28

26

SUARAM, Malaysia Civil and Political Rights Status Report 2010: Overview (Suaram Komunikasi, 2011). 27 SUARAM, Malaysia Civil and Political Rights Report 2011: Overview, 21 (Suaram Komunikasi, 2011). 28 Celine Fernandez, ‘Malaysian Christians Complain about Israel Travel Rules’ The Wall Street Journal – Southeast Asia (5 July 2012) accessed 4 June 2013.

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7.25 Conversion and Apostasy. The Lina Joy case shows the adverse ramifications of the Federal Court’s majority ruling for non-Muslims in Malaysia. This case, which attracted international attention, involved a Malay woman who was brought up as a Muslim. Her name before her conversion to Christianity was Azalina JAILANI. She applied to the National Registration Department (NRD) to have her name changed to Lina LELANI, but her application was rejected without any reason being given. She applied a second time to change her name to Lina JOY and stated that she had converted to Christianity. She was subsequently issued a new identity card but with Islam stated as the religion on her card. She applied to have ‘Islam’ as her designated religion removed from her personal identity card. The NRD rejected her application on the grounds that she first had to obtain a certificate from the Syariah Court officially approving her apostate status, even though there was no provision in the NRD regulations requiring a person to obtain such an order from the Syariah Court. It was clear to her that no such approval was forthcoming and she lost her case in the High Court. Faiza Tamby CHIK J said: Therefore a person as long as he/she is a Malay and by definition under art. 160 cl (2) is a Muslim, the said person cannot renounce his/her religion at all. A Malay under art. 160 (2) remains in the Islamic faith until his or her dying days… Even if one is non-Malay and embraces Islam and becomes a Muslim convert (mualaf) and later decides to leave the Islamic faith he or she is still required to report and see the relevant State Islamic authority who will decide on her renunciation of Islam…’29

29

Lina Joy v Majlis Agama Islam Wilayah & Anor (2004) 2 Malayan Law Journal 119, 143.

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7.26 The High Court judge held that Lina JOY was still a Muslim and that the issue of finality of her decision to convert out of Islam was a matter for the Syariah Court and the not the civil courts. 7.27 On appeal, a 2-1 majority of the Court of Appeal (Abdul Aziz MOHAMAD JCA and Arifin ZAKARIA JCA, Gopal Sri RAM JCA (dissenting)) held that the NRD was ‘right in law in rejecting [Lina JOY’s] application…to have the statement of her religion as “Islam” deleted from her NRIC and in requiring a certificate and/or order from the Syariah Court’.30 The Federal Court (Ahmad FAIRUZ CJ and Alauddin Mohd SHERIF FCJ, Richard MALANJUM CJ (Sabah and Sarawak) dissenting) dismissed her appeal from the decision of the Court of Appeal.31 7.28 The substantive effect of the Lina Joy case is that a Muslim cannot exit the Islamic faith without first obtaining the approval of the Syariah Court. The stance of the majority derogated from the declared supremacy of the Constitution. It undermined the general guarantee under Article 11 of Muslim Malaysians to invoke the right to practise and profess the religion of their choice by interposing a third party whose approval had to be obtained in order to change religion. Richard MALANJUM CJ (Sabah and Sarawak) pointed out that it would be unreasonable ‘to expect [Lina JOY] to apply for a certificate of apostasy when to do so would likely expose her to a range of offences under the Islamic law’.32 Other persons in an equivalent position to Lina JOY

30

Lina Joy [2005] 6 Malayan Law Journal 193, 216 at [51] per Gopal Sri Ram JCA. 31 Lina Joy [2007] 4 Malayan Law Journal 585. 32 ibid 632 at [90].

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would be placed in an impossible situation by the majority decision. Apostasy can be a criminal offence in some of the Malaysian states, attracting ‘punishments of up to RM3,000 fine or imprisonment of up to three years and mandatory detention in the rehabilitation centre for up to 36 months, like the ones provided in Perak, Terengganu and Kelantan respectively’.33 7.29 It has been pointed out that in Lina Joy ‘of the seven judges — from the High Court to the Court of Appeal and then the Federal Court — who heard Ms. JOY’s originating summons, the five who found against her were all Muslims, but the two who found in her favour were from non-Muslim minorities’.34 In a 1978 essay surveying constitutional changes in the first two decades since the attainment of independence by the Malaysian polity, the late Professor Hugh HICKLING observed: Taking a trawl through the Malaysian law reports of the last twenty years, I doubt whether in any case we could assert that this judge or that was an English, Scots, Malay, Chinese, or Indian lawyer, on the basis of his judgment. In other words, delete his name as author of the judgment, and you will be unable to identify the ethnic origin of the judge.35

33

Mohamed Azam Mohamed Adil, ‘Restrictions in Freedom of Religion in Malaysia: A Conceptual Analysis with Special Reference to the Law of Apostasy’ (2007) 4(2) Muslim World Journal of Human Rights 1, 24. 34 A L R Joseph, ‘Unfettered Religious Freedom Hangs by the Thread of Minority Dissent in Malaysia: A Review of the Dissenting Judgment of the Federal Court in the Lina Joy Case’ (2009) 14(2) Review of Constitutional Studies 205. 35 R. H. Hickling, ‘An Overview of Constitutional Changes in Malaysia: 19571977’ in Tun Mohamed Suffian, H. P. Lee and F.A. Trindade (eds), The Constitution of Malaysia — its Development: 1957–1977 (Oxford University Press 1978) 1, 15-16.

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7.30 Tun Mohamed SUFFIAN, in his Braddel Memorial Lecture in 1982, said: In a multi-racial and multi religious society like yours and mine, while we judges cannot help being Malay or Chinese or Indian; or being Muslim or Buddhist or Hindu or whatever, we strive not to be too identified with any particular race or religion — so that nobody reading our judgement with our name deleted could with confidence identify our race or religion, and so that the various communities, especially minority communities, are assured that we will not allow their rights to be trampled underfoot.36 7.31 The approach of the superior judges, when confronted with the issue of reconciling Islamic strictures with the fundamental guarantees under the secular Constitution, generated an impression of judges who too readily rolled over and yielded their role as constitutional guardians to the Syariah Courts.

(4) Malaysia — What Does the Future Hold? 7.32 Malaysia emerged from its colonial cocoon in 1957. When

36

Tun Mohamed Suffian, ‘Four Decades in the Law — Looking Back’ in F A Trindade and H P Lee (eds), The Constitution of Malaysia — Further Perspectives and Developments (Oxford University Press 1986), 216. Sultan Azlan Shah once observed: ‘Judging in a diverse society is not an easy task. Judges in many parts of the world face similar difficulties.’ HRH Sultan Azlan Shah, ‘50 Years of Constitutionalism and the Rule of Law’ (Opening address by HRH Sultan Azlan Shah at the 14th Malaysian Law Conference, Kuala Lumpur, 29 October 2007) accessed 4 June 2013.

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compared with countries that obtained their independence after the Second World War, its development into a stable polity has been regarded as quite impressive. Apart from the aberration of the 1969 ‘May Thirteenth’ communal riots in Kuala Lumpur, the Malaysian nation has never witnessed any major convulsion of its social fabric as to impede its goal of achieving recognition as a first world country. A remarkable feature of Malaysia’s history is that, so far, civil power has never been usurped by the armed forces. 7.33 An assessment of the Malaysian polity cannot ignore some harsh realities. The diverse nature of the polity in terms of various ethnic, lingual and religious dimensions gives rise to simmering tensions. Those dimensions have, until 2008, been managed through governance by a coalition that represents the major races in Malaysia. Playing on the fear of a possible recurrence of a ‘May Thirteenth’ tragedy whenever the government’s racial or religious policies are questioned, the Barisan Nasional coalition managed to achieve a two-thirds majority in each of the general elections until 2008. In that year, for the first time, three opposition parties (the People’s Justice Party, the Pan-Malaysian Islamic Party and the Democratic Action Party) forged a loose alliance (Pakatan Rakyat, or People’s Alliance) under the leadership of Anwar IBRAHIM and came very close to wresting power from the Barisan Nasional. 7.34 The 2008 general elections results had a liberating effect on the populace. Many citizens shed their fears of governmental retribution for openly opposing the Barisan Nasional government. The 2013 general elections saw the Barisan Nasional retaining power but with a further reduction in its majority, amidst claims of widespread electoral fraud and vote buying. The test of a true democracy — which has yet to be confronted by

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the Malaysian polity — is whether there can be a peaceful transition of power should the ruling Barisan Nasional government lose a general election. 7.35 Traditional disquiet over Malay dominance and Malay preferential treatment today takes the form of concerns pertaining to a perceived Islamisation of a Malaysian polity that was intended by the framers of the Constitution to be a ‘secular’ entity. In the past decade, the provisions of the Malaysian Constitution, especially Articles 3, 10 and 11 ‘have become urgent and divisive matters of political and legal controversy’.37 Joseph Chinyong LIOW has stated that there ‘should be little doubt that Islamisation is gaining momentum in Malaysia and will continue to do so’ and provided the sombre assessment that ‘the extent of penetration of Islamic consciousness into conceptions of order and governance’ is such that ‘the main debate is no longer the question of whether Malaysia is an Islamic or secular state, but what type of Islamic state Malaysia is today and will be in the future’.38 7.36 Civil society has a very important role to play in resisting the tide of this phenomenon. Such a phenomenon not only undermines the secular status of the Malaysian constitution, but also has serious consequences for moderate and progressive Muslims if the phenomenon allows a radical or highly conservative form of the Islamic religion to prevail over them. On this score, Muslims in

37

Amanda J Whiting, ‘Secularism, the Islamic State and the Malaysian Legal Profession’ (2010) 5(1) Asian Journal of Comparative Law 1, 2. 38 Liow (n 4) 192.

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Malaysia are really the only ones who can ensure their enjoyment of the fundamental guarantees. It requires moderate and progressive Muslims to publicly articulate their cause, despite a ‘campaign of intimidation’.39 Organisations like Sisters in Islam (SIS) and the heads of Islam in the states play a key role in the shaping public discourse on this phenomenon and countering the posturing of the Pan-Malaysian Islamic Party and the United Malays National Organisation in trying to outdo each other in displaying their Islamic credentials. Azrul Mohd KHALIB, in a courageous opinion piece published in The Malaysian Insider, said: In our country, we find that a small minority of unelected individuals who bestow upon themselves [the title of] … champions of the faith and feel that they are unaccountable to anyone, are basically attempting to hijack relations and sow distrusts and fear between communities particularly between Muslims and Christians. They have intruded into public policy making far beyond their scope and mandate of religious affairs. Where and when does it stop? Where is the separation of mosque and state? The paranoia that exists is one of our own making. We have allowed a group of ill-informed, ignorant and bigoted individuals to lead us down the yellow

39

Whiting (n 36) 5: ‘…alternative and dissenting Muslim voices are sidelined, chastised or silenced by authoritarian elements within both government and the opposition that claim exclusive authority and capacity to interpret Islam’.

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brick road towards their vision of a future where one ethnic group and one faith dominates above all.40 7.37 The civil courts which ‘appear to have gone along for the ride’ in the face of ‘greater Islamic fundamentalism’41 must develop a stiffer backbone. According to Professor Li-ann THIO: When religious freedom rights clash with the rights of others and state interests, it falls to impartial judges to adjudicate upon the legitimacy of a restriction. In so doing, they are bound to protect both constitutional rights and principles informing the constitutional order, such as secularism and multi-culturism.42 7.38 Two decisions recently handed down by the Court of Appeal, upholding the decisions of High Court judges, provide a glimmer of hope that the superior courts are now recognising that they may have abdicated their role

40

Azrul Mohd Khalib, ‘Separation of Mosque and State’ The Malaysian Insider (12 April 2012) accessed 4 June 2013. Khalib was criticising the holding of a seminar by a religious body in conjunction with a Johore State agency. The seminar was originally entitled ‘Pemantapan Aqidah, Bahaya Liberalisme dan Pluralism Serta Ancaman Kristianisasi Terhadap Umat Islam. Apa Peranan Guru? (Strengthening the Faith, the Dangers of Liberalism and Pluralism and the Threat of Christianity towards Muslims. What is the Role of Teachers?)’. The seminar involved 300 teachers from Johore. 41 Kevin Y L Tan, ‘The Creation of Greater Malaysia: Law, Politics and Religion’ (Keynote Address, ‘Law and Society in Malaysia: Pluralism, Islam and Development’ Conference, University of Victoria, BC, 16 July 2011). 42 Li-ann Thio, ‘Courting Religion: The Judge between Caesar and God in Asian Courts’ [2009] Singapore Journal of Legal Studies 52, 53.

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too readily and that it is necessary to draw a line in the sand, to make it clear to the authorities involved in those two cases that they must operate under the rule of law and under the Malaysian Constitution. In the first case, the Home Ministry had placed a ban on a publication, Muslim Women and the Challenge of Islamic Extremism, issued by the SIS on the grounds that it was prejudicial to public order and would cause confusion among particularly Muslim women. The Kuala Lumpur High Court found an absence of facts to support the ban and its attention was also drawn to the fact that the book had been in circulation for two years before the imposition of the ban. The Court of Appeal upheld the High Court’s decision and viewed the Home Minister’s satisfaction that the book was prejudicial to the public interest as in the realm of “irrationality”.43 In the second case, the Johor High Court ordered the Johor Bahru City Council (MBJB) to pay compensation to Khalip BACHIK, Kelah LAH and 49 other Orang Asli (indigenous people) for demolishing a chapel built by them in the state of Johore. They had been given an assurance by the authorities that they could build a place of worship at the new settlement to which they had been relocated. The High Court found that the state in carrying out the demolition had ‘failed to show any court order or proof

43

SIS Forum (Malaysia) v Dato Seri Syed Hamid bin Syed Jaafar Albar (Menteri Dalam Negeri) [2010] 2 MLJ 377 (High Court); Dato Seri Syed Hamid bin Syed Jaafar Albar (Menteri Dalam Negeri) v SIS Forum (Malaysia) (27 July 2012; Court of Appeal). Leave to appeal was dismissed by the Federal Court on 14 March 2013.

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that the chapel was sitting on state land’.44 The Court of Appeal struck out the appeal from the decision of the High Court after the Johor Legal Adviser had informed the court that they had withdrawn the appeal.45 7.39 The role of Islam in the Malaysian polity should be governed by the relevant provisions in the Malaysian Constitution. The scope and contours of those provisions will be heavily dependent on the extent to which genuine consideration is given to the original intent behind those provisions. In the face of a push by advocates of an Islamisation agenda, the contours of the constitutional provisions have been deliberately distorted in order advance the cause of Islamisation. 7.40 How this phenomenon is managed by whichever political coalition is in power will determine whether Malaysia can continue to progress as a modern secular state founded on the rule of law, as envisioned by the constitutional founders.

44

See V Anbalagan, ‘Johor govt will compensate Orang Asli community’ New Straits Times Online 7 August 2012 available at accessed 26 June 2013. See PengarahTanah dan Galian Johorand Anor v Khalip bin Bachik and Anor [2013] 1 Malayan Law Journal 799. 45 Johor Baru City Council (MBJB) v Khalip Bachik (8 August 2012). For more details, see Hafiz Yatim, ‘JB City Council Loses Appeal in “Chapel Demolition” Case’ (Malaysiakini, 30 July 2012) accessed 1 May 2013.

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Rule of Law under the Communist Party of China: A Study of Local People’s Congress Elections Feng LIN1

(1) Introduction 8.01 China’s Parliament, the National People’s Congress (NPC), was newly elected in March 2013, which in turn elected a Standing Committee (NPCSC).2 At the closing meeting of the first session of the newly elected NPC, the Chairman of the NPCSC, Mr. Dejiang ZHANG, said that the primary task for the people’s congresses at all levels including their standing committees is to uphold socialist democracy and rule of law.3 Meanwhile, the Chinese Constitution provides that the country will be under the leadership of the Communist Party of China (CPC).4 This chapter will discuss the issue of rule of law under the leadership of

1



2



3



4



Professor of Law, School of Law, City University of Hong Kong, (LL.B., fudan Unviersity Shanghai, 1987; LL.M., Victoria University of Wellington, 1992; Ph.D., Beijing University, 1998; Barrister: England, Wales, and Hong Kong SAR. The NPC is only in session for two to three weeks every year. When it is not in session, the NPCSC will exercise its power. See Constitution of the People’s Republic of China of 1982: Zhonghua Renmin Gongheguo Xianfa, 1982 (Constitution), arts 62 and 67. See ‘Top legislator vows to promote socialist democracy, rule of law’ (National People’s Congress, 17 March 2013) accessed 2 May 2013. Constitution, Preamble.

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the CPC through studying the electoral system for local people’s congresses. 8.02 Since the essence of rule of law is supremacy of the Constitution, after this introduction, Part II of the chapter will discuss the essentials of constitutionalism and examine China’s constitutional development to see whether those essentials have been incorporated into the Constitution. There is, however, consensus among Western and Chinese scholars that there still exists a huge gap between China’s current constitutional practice and the theory of constitutionalism. Part III moves on to discuss the statutory provisions governing the election of the people’s congresses. Part IV discusses the policy considerations behind the existing electoral system for the people’s congresses. Part V of the chapter studies some election practices. Part IV argues that electoral reform of the people’s congress in the past 30-odd years indicates that electoral system reform in China depends on the willingness of the CPC. If the CPC is willing, reasonable progress can be made within a relatively short period of time. Otherwise, no progress can be achieved in even a relatively longer period. Rule of law under the CPC still seems rather remote.

(2) The Concept of Constitutionalism and the Chinese Constitution 8.03 The debate between constitutionalism and democracy has existed for centuries among scholars, and will no doubt continue in the future. This chapter has no intention to enter that debate in the Chinese context. It suffices to outline the essentials of constitutionalism here for the purposes of this chapter. While it is acknowledged by many scholars that it is difficult to give a definition of

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constitutionalism that will be accepted by all scholars, some scholars have tried to define the term.5 Constitutionalism has been described by one scholar as ‘a set of ideas and principles which form the common basis of the rich variety of constitutions which we find in many countries of the world … Thus constitutionalism encompasses institutional devices and procedures which determine the formations, structure and orderly functioning of government, and it embodies the basic ideas, principles and values of a polity which aspires to give its members a share in government’.6 It is clear that this definition has tried to define constitutionalism from several different angles, including constitutional structure, procedure, and principles/values, etc. If we focus on the principles/values, a country claiming that it has achieved constitutionalism has to show that it embodies and also practices the following principles/ values: (i) limited government through constitution, (ii) rule of law, and (iii) protection of fundamental rights, especially political rights.7 8.04 Since the CPC came into power in 1949 in China, it has adopted four Constitutions; the 1982 Constitution is the latest one.8 The 1982 Constitution has been amended four times so

5



6



7



8



See, for example, Andras Sajo, Limiting Government: An Introduction to Constitutionalism (Central European University Press 1999) 9–14; Larry Alexander (ed), Constitutionalism: Philosophical Foundations (Cambridge University Press 1998). See Ulrich K. Preuss, ‘The Political Meaning of Constitutionalism’ in Richard Bellamy (ed), Constitutionalism, Democracy and Sovereignty: American and European Perspectives (Avebury 1996) 11–12. See, for example, Sajo (n 4) 9–14; also Richard S. Kay, ‘American Constitutionalism’ in Larry Alexander (ed), Constitutionalism: Philosophical Foundations (Cambridge University Press 1998) 16–63. The other three are the 1954 Constitution, the 1975 Constitution and the 1978 Constitution.

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far.9 An examination of the 1982 Constitution shows that it has expressly adopted the rule of law principle and protection of fundamental rights. After its amendment in 1999, paragraph 1 of Article 5 provides that ‘[T]he People’s Republic of China governs the country according to law and makes it a socialist country under rule of law’. The 2004 Amendments added a new paragraph 3 to Article 33, which states, ‘[T]he State respects and preserves human rights’. Chapter Two of the 1982 Constitution lists many other fundamental rights which should be protected and which are very similar to those covered under the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR).10 Furthermore, Chapter 3 of the 1982 Constitution sets out the powers and obligations of various government bodies, including the legislature (both national and local),11 executive,12 and judicial organs.13 These government bodies must exercise their powers within the limits

9 The amendments were enacted in 1988, 1993, 1999 and 2004. 10 Chapter 2 of the 1982 Constitution lists the following rights: equal treatment, right to election, freedom of expression, freedom of religious belief, freedom of person (right to liberty and security of the person), personal dignity (protection from inhuman treatment), protection from unlawful intrusion to residence, freedom and privacy of correspondence, freedom to criticise the government, right to work, right to rest, protection of the livelihood of retired persons, right to receive material assistance for old, ill and disabled persons, right to education, freedom to engage in scientific research, literary and artistic creation and other cultural pursuits, protection against discrimination, protection of family related rights, certain rights of women and children, and so on. 11 Section 1 of Chapter 3 of the Constitution sets out the powers of the National People’s Congress and its Standing Committee while Section 5 of Chapter 3 sets out the powers of local people’s congresses at different levels. 12 Sections 2, 3 and 4 of Chapter 3 of the Constitution set out the powers of the President, the State Council and Central Military Commission while Section 5 sets out the powers of local governments at different levels. 13 Section 7 of Chapter 3 of the Constitution sets out the powers of the courts and procuratorates.

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set by the 1982 Constitution. Hence, judging from the contents of the 1982 Constitution as discussed above, it is clear that the three essential values of constitutionalism as outlined above have been incorporated into the 1982 Constitution. 8.05 Having a written constitution does not mean that particular country has achieved constitutionalism. Hence, the incorporation of those essential constitutional values into the 1982 Constitution does not mean China has achieved constitutionalism. The next part of this chapter will examine the development of the electoral system for people’s congresses in China.

(3) Electoral System for People’s Congresses and Its Evolution 8.06 The people’s congress system is the fundamental political system in China. The 1982 Constitution defines the NPC as the national organ of state power and local people’s congresses as organs of local state power.14 There are five levels of people’s congresses: national, provincial, municipal, county and township. The 1982 Constitution classifies the five people’s congresses into two categories. One consists of township and county people’s congresses, which are directly elected by voters. The other consists of the other three levels of people’s congresses, which are indirectly elected by the deputies to the people’s congresses at the next lower level.15 8.07 Detailed rules on elections for people’s congresses are set out in the Election Law. The first Election Law in

14

See Constitution, art 2. See Constitution, arts 59 and 97.

15

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China, enacted in February 1953, formally established the electoral system in China.16 It was properly implemented before the Cultural Revolution, but was not implemented at all during the period of the Cultural Revolution between 1966 and 1976. After the Cultural Revolution, in order to effectively protect the people’s right to election, and to improve the people’s congress system, the Third Plenum of the 11th National Assembly of the CPC decided to amend the Election Law in order to reform and improve China’s electoral system. On 1 July 1979, the fifth NPC adopted China’s second Election Law (the 1979 Election Law). The 1979 Election Law differed from the 1953 law in seven ways. First, direct election was expanded from township to county level. Second, the rule that the number of formal candidates had to equal the number of deputies to be elected was changed so that there could be more formal candidates than deputy positions. Third, voters and deputies to a people’s congress gained the right to nominate candidates. Fourth, the principle of secret ballot was guaranteed in the election of people’s congresses at all levels. Fifth, very liberal provisions were incorporated on the promotion of candidates, which allowed all political parties, other organisations and voters to use various means to promote the candidates they nominated. Sixth, if too many candidates were nominated, a pre-election could be held. Seventh, the rule that a candidate would be deemed elected if he obtained a simple plurality of the voters (in the case of direct election) or deputies (in the case of indirect election) was changed so that a candidate

16

For a description of the main content of the 1953 Election Law, please refer to Cai Dingjian, ‘Zhongguo Xuanju Zhidu de Lishi he Xianzhuang’ in Cai Dingjian (ed), Zhongguo Xuanju Zhuangkuang de Baogao (The Report on Election Circumstances in China) (Law Press 2002) 4–6.

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had to obtain more than 50% of all voters or deputies in order to be elected.17 8.08 One scholar has pointed out that the 1979 Election Law was an attempt to meet the demand of people from all sectors in society to participate in politics at the initial stage of economic reform, and that democracy was the primary objective of the law. Of the amendments, Dingjian CAI, a leading scholar on the people’s congress system in China, is of the view that three were democratic: the voters’ right to make nominations, the permission to use various means to promote candidates, and the rule that the number of candidates should be more than the deputies to be elected. These three changes evidence the democratic nature of the 1979 Election Law.18 Another scholar believes that the provisions on pre-election and the adoption of various means to promote candidates may affect the efficiency of elections; to a certain extent, according to that scholar, the 1979 Election Law sacrificed efficiency for the sake of democracy.19 8.09 After its promulgation, the 1979 Election Law was subsequently amended five times, in 1982, 1986, 1995, 2004, and 2010. The most important change made by the 1982 Amendments was to the promotion of candidates. After the 1982 amendments, candidates could only be introduced at meetings of voters’ groups; the purpose was

17

See Cai (n 15) 9–10; see also Xie Baofu, ‘Dangdai Zhongguo Xuanju Zhidu Ruogan Wenti Fenxi’ (Analysis of Several Issues on Contemporary Chinese Electoral System), (2002) 1 Shenzhen University Journal (Social Science Version), pp. 67– 73. 18 See Cai (n 15) 13–14. 19 See Xie (n 16).

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obviously to restrict competition as the candidates were no longer allowed to compaign for votes.20 Hence, the 1982 Amendments are commonly considered a step backward in democratic development.21 8.10 Compared with the 1982 Amendments, the 1986 Amendments were regarded as a big step forward towards democratic elections.22 The major changes made by the 1986 Amendments are as follows.23 First, the quota of deputies to the NPC was reduced from less than 3,500 to less than 3,000. The quota for local people’s congresses also dropped significantly.24 Second, voter registration procedures were simplified and voters no longer needed to register multiple times to vote; one registration enabled them to vote for the rest of their lives. Third, the minimum number of voters needed to nominate a candidate was increased from three to 10. Fourth, the pre-election procedure, which was formerly used for the determination of formal candidates in both direct and indirect elections, was repealed.25 Fifth, the requirement for a candidate to be properly elected was changed from getting the support of 50% or more of all eligible voters to 50% of voters participating in the election. Although the 1979 Election Law already gave voters the right to nominate candidates and set the rule that there should be more candidates than the number of representatives to be elected, in practice,

20

See Cai (n 15) 16–17. Once candidates are not allowed to compaign, there is no competition and voters can only vote by relying on the introduction by the election committee. 21 ibid. 22 See Cai (n 15) 18. 23 See Cai (n 15) 18–19. 24 See Cai (n 15) 18. 25 See Cai (n 15) 19.

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election organisers often used pre-elections to make the number of candidates equal to the number of deputies to be elected. Dingjian CAI is of the view that these two fundamental reforms in the electoral system were only truly implemented through the 1986 Amendments.26 8.11 The 1995 Amendments contained four major changes to the Election Law but none contributed to the goal of democratisation.27 It has been noted that the 1995 Amendments were a setback in that the pre-election procedure was re-introduced (on the condition that the number of candidates be higher than the number of deputies to be elected).28 8.12 The 2004 Amendments contained the following major changes.29 First, the provision on pre-elections became more detailed and specific. Under the 2004 Amendments, for a direct election, once the number of preliminary candidates nominated by voters exceeds the maximum number of candidates set out in the Election Law, the election committee must ask the groups of voters within the electoral district to discuss, consult with each other and determine the list of formal candidates according to the majority view of voters. If voters cannot agree on the formal candidates, a pre-election is held and the candidates with the most votes become the formal candidates.30 In an

26

28 29 30 27

See Cai (n 15) 19–20. See Cai (n 15) 26–28. See Cai (n 15) 28. See Xie (n 16). See the 2nd amendment of the 2004 Amendments to the Election Law; see also Election Law, art 31, post-amendment.

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indirect election, the NPC’s presidium31 submits a list of candidates nominated according to law to all deputies for consultation and discussion. If there are fewer preliminary candidates than the maximum number of candidates stipulated under the Election Law, a direct election is held. If the number of preliminary candidates exceeds the maximum statutory number of candidates, a pre-election is held and the candidates with the most votes become the formal candidates, up to the maximum statutory number.32 Second, in order to respond to the increasing demand for democracy, candidates were allowed to meet voters and answer their questions.33 Third, the 2004 Amendments established punitive measures for election fraud, by defining the concept more clearly, imposing penalties on illegal election activities, and expanding the types of administrative penalties that could be used to punish unlawful activities of governmental officials.34 8.13 The 2010 Amendments to the Election Law are the most recent.35 The most significant change was making a vote cast by a rural resident equal to a vote cast by an urban resident, which means that each representative will represent about the same number of people in the same

31

The NPC’s Presidium is mentioned in art 61(2) of the 1982 Constituion and art 6 of the Organic Law of the National People’s Congress of the PRC; The nomination power of the Presidium is defined in art 13 of the Organic Law of the National People’s Congress of the PRC. 32 See Election Law, art 31. 33 See the 3rd amendment of 2004 Amendments to the Election Law; see also the amended Election Law, art 33. 34 See the 5th amendment of 2004 Amendments to the Election Law; see also the amended Election Law, art 52. 35 See NPC, ‘Decision of the NPC on Amendment of the Election Law’ (14 March 2010 ) accessed 5 May 2013.

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administrative district.36 This has been hailed by many Chinese scholars as a major step forward in fair and equal election procedure.37 The second major change was that upon the request of voters, the election committee must organise candidates to meet voters, introduce themselves, and answer any questions raised by voters.38 The purpose of this change was to protect the voters’ right to know relevant information about the candidates and at the same time to enhance the transparency of the election process.39 The third major change was to further standardise the voting process to ensure the secrecy of voting.40 The fourth major change was to provide detailed procedures for submitting and approving the resignation of a representative to a people’s congress.41 8.14 It can be seen from the above discussion of the historical development of the Election Law that after five rounds of amendments and more than three decades of development since the enactment of the 1979 Election Law, China’s electoral system for people’s congresses has made some progress towards democratic elections. However, direct elections are still held only at township and county levels, and not for the other three levels of people’s congresses. The degree of democracy is still not high.

36

From 1995 to 2010, a vote cast by a resident in a rural area had one-fourth the value of a vote cast by a resident in urban area. See also Article 25 of the Election Law after the 2010 Amendments. 37 Zhang Wei, ‘Minzhu Zhengzhi Jingcheng de Zhongda Kuayue’ (Great Leap forward in the Process of Democratic Development) (Xinhua News, 13 March 2010) accessed 5 May 2013. 38 See the amended Election Law, art 33. 39 See above n. 35. 40 See the amended Election Law, art 38. 41 See the amended Election Law, art 52.

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(4) Policy Reasons behind Electoral Reforms 8.15 Before 1949, the CPC made clear that that it would organise democratic elections once it came into power.42 But after it actually came into power in 1949, the CPC came to the view that democracy was difficult to achieve in a poor, undeveloped, and populous country. Various senior CPC officials opined on different occasions that it was not appropriate for China to have universal, equal, direct and confidential elections. Dingjian CAI has summarised their arguments as follows: (1) it was difficult for China to have direct elections immediately, since China had a huge population; (2) it was difficult to implement the principle of equality in elections as the population of peasants was too large — otherwise most of the deputies to the people’s congresses would be peasants; (3) the education level of Chinese citizens was too low and many were illiterate, making confidential ballots very difficult; (4) China did not have enough experience in elections, the masses did not have a good understanding of elections and were not enthusiastic about them; and (5) because of the conditions mentioned above, it would be meaningless to have completely democratic elections.43 The CPC therefore emphasised the substance of elections rather than the procedures and did not hold direct elections immediately after it came into power.

42

See Cai (n 15) 2–3, citing Selected Works of Mao Zedong (combined version) (Renmin Press 1968) 969–970. 43 See Cai (n 15) 4. The first reason is more or less a logistical issue as big population makes the organisation of election difficult. The second reason is a concern over whether over-representation of peasants which is against the orthodox Marxist approach under which working class is the leading class which should enjoy the ruling position.

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8.16 After the Cultural Revolution, the CPC realised the necessity of reforming its political and electoral systems, which led to the enactment of the 1979 Election Law. Some senior CPC leaders felt the masses should be in direct control of people’s congresses at the county level, and in indirect control of provincial congresses as well as the NPC. That way, nine hundred million people could participate in the administration of national affairs and be in charge of their own as well as national fortune. Some senior officials also thought that electoral reform was needed to prevent the re-occurrence of the tragic Cultural Revolution.44 Hence, the CPC genuinely intended to develop democratic electoral system in the end of 1970s. By 1987, when the CPC held its 13th National Assembly, the then Secretary-General of the Central Committee of the CPC devoted quite a bit of space in his Working Report entitled ‘Moving Forward Along the Socialist Road with Chinese Characteristics’ to discussing political reform, concluding that it was time for China to undertake political system reform. In particular, he made the following comments on the electoral system of people’s congresses: In recent years, the degree of democracy in election in China is increasing. But the electoral system is still not yet satisfactory and existing statutory provisions have not been implemented fully and effectively. In the future, we should fully respect the will of voters and ensure that voters have the freedom to vote. We should insist on the principle that the number of candidates should be more

44

See Peng Zhen, ‘Guanyu Quanguo Xuanju Shidian Gongzuo de Jidian Yijian’ (Several Opinions on National Election Work on Trial) and also Cai (n 36) 10–11.

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than positions available, improve the methods for the nomination of candidates, and the methods to introduce candidates. Practice has proved that rigid statutory provision on the ratio of candidates of different backgrounds is against the freedom of voters to express their own wills through election. In order to ensure that candidates represent different interests, methods other than geographical election can be introduced, including functional constituencies or any other feasible methods.45 8.17 The above quotation indicates that the CPC already had ideas on how to reform people’s congress elections. But after the events at Tiananmen Square on 4 June 1989 (June 4th event), the political environment became relatively tense. For elections held in 1990, the Central Committee of the CPC stated the necessity of sticking to the four cardinal principles to prevent bourgeois liberalisation. At the same time, it also reviewed town and county elections since 1979 and stated the necessity of organising elections according to the principles established in the 1979 Election Law. In reality, however, the 1990 election was a step back in the development of democratic elections,46 and the CPC pulled back from actual reform of people’s congress elections, as shown in the Working Report delivered by Zemin JIANG, then Secretary-General of the Central Committee of the CPC, to the 14th National Assembly of the CPC, which was entitled ‘Jiakuai Gaige Kaifang he Xiandaihua Jianshe Bufa Duqu you Zhongguo Tese Shehuizhuyi Shiye de Gengda Shengli’ (Speeding up

45

Jiang Zemin, ‘Yanzhe You Zhongguo Tese de Shehui Zhuyi Daolu Qianjin’ (March Along the Socialist Road with Chinese Characteristics), Part V (Working Report of the 16th National Assembly of the CPC, 2002). 46 See Cai (n 15) 25, 26 and 30.

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Economic Reform, Open-door Policy, and Modernization so as to Achieve Greater Success in the Socialist Course with Chinese Characteristics). Though JIANG mentioned political system reform in his report, he discussed it very briefly and only pointed out in principle that the objective of political reform was to establish a socialist democratic political system rather than a Western multi-party system or parliamentary system. He did not make any mention of the electoral system of people’s congresses. .

8.18 After 1992, China’s political environment became more liberal. At the 15th and 16th National Assemblies of the CPC held in 1997 and 2002 respectively, Zemin JIANG, then Secretary-General of the Central Committee of the CPC, devoted an entire chapter in his Working Report for each year to political reform. Jiang called for the electoral system ‘to have democratic election, democratic decision-making, democratic administration and democratic supervision, to protect the broad rights and freedoms enjoyed by people according to law, and to respect and protect human rights’.47 The 4th Plenum of the 16th National Assembly of the CPC adopted the Central Committee of the CPC on Strengthening the CPC’s Governance Capacity (“the Decision”). Following the tone set by the Working Report of the 16th National Assembly in 2002, the Decision emphasised the establishment of democratic systems. My understanding is

47

Jiang Zemin, ‘Gaoju Dengxiaoping Lilun Weida Qizhi, ba Jianshe you Zhongguo Tese Shehui Zhuyi Shiye Quanmian Tuixiang Ershiyi Shiji’ (Holding on to Dengxiaoping Theory and Pushing Forward comprehensively the Course of Establishing Socialism with Chinese Characteristics into the 21st Century) (Working Report of the 15th National Assembly of the CPC, 1997) Part VI; Jiang Zemin, ‘Yanzhe You Zhongguo Tese de Shehui Zhuyi Daolu Qianjin’ (March Along the Socialist Road with Chinese Characteristics) Part V (Working Report of the 16th National Assembly of the CPC, 2002).

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that the establishment of democratic systems included the establishment of a democratic electoral system of people’s congresses. 8.19 At the 17th National Assembly of the CPC held in 2007, the Working Report of the CPC made it clear that in the election of representatives to the people’s congresses, the electoral system should gradually move toward the objective that each representative, regardless of whether his or her area was rural or urban, should represent the same number of people.48 The reason for this policy change was because by 2007 China had experienced rapid economic development and urbanisation for almost three decades; urbanisation and migration had resulted in a population almost equally divided between rural and urban areas. It was therefore necessary to make progressive amendments to the Election Law in order to keep pace.49 In contrast, at the 18th National Assembly of the CPC (2012), the Working Report made no mention of the reform of the electoral system for people’s congresses. Its implication is that the CPC had neither plan nor intention to further reform the electoral system in the foreseeable coming years. 8.20 In principle, the CPC accepted democratic election of people’s congresses as early as the late 1970s. But it was

48

See Hu jintao, Gaoju Zhongguo Tese Shehuizhuyi Weida Qizhi Wei Duqu Quanmian Jianshe Xiaokang Shehui Xing Shenli er Fengdou (HOLD HIGH THE GREAT BANNER OF SOCIALISM WITH CHINESE CHARACTERISTICS AND STRIVE FOR NEW VICTORIES IN BUILDING A MODERATELY PROSPEROUS SOCIETY IN ALL RESPECTS), (it is the working report delivered by Hu Jintao to the 17th Congress of the CPC in 2007, , accessed 3 July 2013. 49 ibid.

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not until 1987 that the CPC put forth its most concrete plans for implementing the principle through legislation and in practice, including when the scope of direct election would be further expanded and to what extent voters would be given more autonomy in the election of deputies to people’s congresses. Unfortunately, the June 4th event made it impossible to implement the 1987 policy decision. The Decision adopted by the 4th Plenum of the 16th National Assembly of the CPC confirmed the importance of establishing democratic systems, but did not put forward any specific proposals on electoral system reform. Rather, it emphasised the necessity of combining the leadership of the CPC, democracy and rule of law. That meant a balance needed to be struck between the leadership of the CPC and democratic election of people’s congresses. Though the 17th National Assembly of the CPC stated the importance of making rural and urban votes equal, it did not set out concrete plans to reach such a balance. The 18th National Assembly of the CPC, as stated earlier, did not even make mention of the electoral system. Hence, the future of the electoral system of people’s congresses is still uncertain to a large extent because of lack of direction from the CPC.

(5) Study of Election Practice 8.21 As early as 1980, when direct elections were first held for district and county people’s congresses, students in some universities in Beijing competed heatedly to become deputies to district people’s congresses. Out of 100 students who participated in the election, eight were elected.50

50

See Wang Yi, ‘2003: The Year of Citizens’ Rights’ in Xinwen Zhoukan (China Newsweek), vol. 47, 22 December 2003, 20; see also Luo Liwei, ‘Shui Shi Shoupi Duli Jingxuanren?’ (Who are the first batch of independent candidates?), in Nanfang Zhoumo (Southern Weekends), 12 June 2003.

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Another widely reported and discussed case was that of Lifa YAO, in the city of Qianjiang, Hubei Province. YAO’s first run for a seat in the people’s congress was in 1987, when he ran as an independent candidate for Qianjiang Municipal People’s Congress. He was eventually elected a deputy in 1998 when he ran for election for the fourth consecutive time. In 1998, there were only two independent candidates for Qianjiang Municipal People’s Congress. During his five-year term as a deputy, Lifa YAO sponsored 187 recommendations/bills; this, among other actions, gave some local governmental officials a headache.51 In 2003, when it was time to hold another election for Qianjiang Municipal People’s Congress, in addition to candidates nominated by political parties and people’s organisations, Lifa YAO ran again as an independent candidate, together with 31 other independent candidates. Among the 32 candidates were current deputies to town and municipal people’s congresses, teachers, heads of village residents’ committees, deputy secretaries of village CPC organisations, workers, and so on. These candidates were required to get 10 or more nominations to become candidates. After a process of repeated consultation and deliberation by the election committee with the voters, most of them were screened out; only two of them became formal candidates. On election day (28 November 2003), some voters voted for themselves, by writing their names under the option of ‘tick any other persons’. As a result, two independent candidates and some formal candidates got less than 50% of votes from voters participating in the election and therefore were not properly elected.

51

See ‘Luoxuan Renda Daibiao Shangjing Dijiao Shensu: Ti Renmin Shuohua Releshui?’(A Formal Delegate Who Lost Election Went to Beijing to Submit His Petition: What’s Wrong with Speaking on behalf of People?) (Xinhua, 13 January 2004 accessed 3 July 2013.

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8.22 In a Shenzhen University study of the 2003 district election in Shenzhen and Beijing, the researchers found that only seven people sought nomination as candidates in Shenzhen without the support of the CPC. One was a member of the CPC, three were members of other political parties, and the other three were without any political background. Two of these candidates became formal candidates by receiving nominations from ten or more voters, while the other five participated in the election as ‘self-recommended candidates’. Out of the five self-recommended candidates, three were initially nominated as preliminary candidates by other political parties and were then screened out during the consultation process to determine formal candidates. The other two recommended themselves.52 The scholars noted the importance of the election organising committees (in fact, community residence committees) within the electorates: these committees screened out three candidates while also preventing some of the others from participating in the election, and objecting to, prohibiting, or removing candidates’ election campaign posters.53 Ultimately, the candidate who was a member of the CPC was elected for the single seat. It is clear from their case study that a candidate without the support of the CPC is difficult to get election. This is further supported by what happened in Beijing, where there were about 20 such candidates and most of them failed to get elected in the election.54

52

See Tang Juan, ‘Cong Querenxing Xuanju Zhuanxiang Jingzhengxing Xuanju: Dongyin yu Yiyi — Yi 2003 Nian Shenzhen Quji Renda Daibiao Jingxuan Quntixing Anli wei Jiedu Duixiang’ (From Confirmative Election to Competitive Election: Motive and Meaning: A Case Study of the 2003 Collective Competitive Election for Deputies to District People’s Congress in Shenzhen), in (2004) 3 Zhengzhixue Yanjiu (Political Science Study) 39–41. 53 ibid. 54 For a detailed discussion of the Beijing 2003 election, please refer to Zou, Tang and Huang (n 48).

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8.23 Another round of elections of deputies to township and county/district people’s congresses was held from 2006 to 2007. Generally, no substantial changes or improvements took effect or were made during this round of elections, but some local elections tried a few new things. The city of Zibo, in Shangdong province, placed equal value on rural and urban votes in its election.55 In another election, the number of officials was limited to 25% of the total number of deputies to be elected.56 In another, residents who came from countryside and did not have home registration in cities were permitted to run for election (where they got elected).57 As a general matter, there were more

55

This has raised an interesting constitutional issue. Equal value for each vote is consistent with the right to equality under the 1982 Constitution but is in violation of the relevant provision in the Election Law, which provides that in four rural votes are equal to one urban vote. For a detailed discussion of this election, please refer to Qin Qiang, ‘Chengxiang An Xiangtong Renkou Bili Xuanju Renda Daibiao Shijian de Xianfaxue Sikao: Yi Shandong Zichuan Xuanju Shijian Weili’ (A Constitutional Thought on the Equal Proportion of Population in Countryside and Urban Areas in the Election of Deputies to People’s Congresses — the Example of Election in Zichuan in Shandong Province) (July 2008) Renda Yanjiu (Journal of Research on People’s Congresses) accessed 3 July 2013. 56 In 2007, the Party Committee of Xinjiang Urger Autonomous Region decided to limit the number of officials to 25% of the total number of deputies to be elected to the people’s congresses at township and county/district levels. For a detailed discussion, please refer to: Cai Rongrong, ‘You Biyao Xianzhi Guanyuan Daibiao Bili Ma?’ (Is It Necessary to Limit the Number of Officials in People’s Congresses?)23 April 2008. ). Here officials mean those who hold leadership positions in various governmental organs. accessed 3 July 2013. 57 This was actually allowed in many cities. See for example, Cheng Xianshu, ‘Shanghai Quxian Xiangzhen Liangji Renda Xuanju: Wailaigong Cheng Houxuanren’ (The Election of Deputies to Township and District/County People’s Congresses: Labourers from Other Parts of China Have Become Candidates) , 12 December 2006, Xinwen Wanbao accessed 8 May 2009.

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independent candidates in the 2006–07 elections than in the 2003 elections. According to one source, in Beijing alone there were close to 50,000 independent candidates; the maximum statutory quota of representatives was a bit over 14,000.58 Some local governments welcomed such candidates. Some did not, though even in the cases where local governments interfered with candidate campaigns, some candidates managed to get elected.59 One commentator, Fan LI, was of the view that the increase in the number of independent candidates indicated that ordinary citizens were more interested in participating in elections.60 8.24 In the most recent round of elections held in 2011 and 2012, the number of independent candidates was estimated to be even higher than the number in the 2006–07 elections.61 One independent participant in Beijing opined that no progress had been made in reforming people’s congress elections in the past three decades.62 Another commentator argued that, because of the prevailing political position that stability was of paramount importance, the 2011–2012 elections were dogged with

58

See Peng Zhiping, ‘Dalu Jiceng Minzhu Shenwen’ (Local Democracy Increases in China) Zhongguo Shibao, 2007.07.08 accessed 3 July 2013. 59 ibid. 60 ibid. 61 See Yang Jinfang, 2011 Trend of Independent Competition and Its Circumstance (World and China Institute, accessed 3 July 2013. 62 Voice of America, ‘30 Nian Mei Jinbu de Zhongguo Renda Daibiao Xuanju’ (No Progress for the People’s Congress Election in the Past Three Decades) (Voice of America Cantonese News, 3 October 2011) accessed 7 May 2013.

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even more serious instances of improper control and interference.63

(6) Conclusion 8.25 The above discussion reveals there still exist many problems with the election of local people’s congresses. The most fundamental problems are that elections might not reflect the true choices of voters, and that election organisers still tamper with and influence elections. 8.26 Elections for people’s congresses are directly related to state power. Hence, in theory, it is the most important electoral system in comparison with other electoral systems such as the election of the heads of local governments and so on. Whether or not electoral reform for people’s congresses is successful will have serious influence on the ruling position and style of the CPC. As discussed, the CPC has not so far implemented any specific policy with regard to the direction of this electoral reform. At most, it has shown its ‘tolerance and implied consent’ for citizen participation in such elections under the existing system. It has not put forward any specific guidelines or proposals for reform of people’s congress elections. Some scholars are of the view that ‘in an authoritative society, no reform can succeed without interaction with the government, and the reform progress can’t deviate too much from the existing system and structure’.64 This view is quite correct in China. On the one hand, I believe that a reformed electoral system should not deviate too much from what currently exists. On the other hand, we should make full use of the rights

63 64

See Yang (n 59). See Zou, Tang, and Huang (n 52) 35–43.

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that already exist in the current electoral system. As more and more citizens take seriously their constitutional and legal rights to vote and to run for election, such rights under the Election Law might well become effective, and formal elections may take the place of informal Election Law procedures. 8.27 The electoral system of local people’s congresses can only change if the CPC accepts and promotes electoral reform, exercises self-restraint, and avoids using informal procedures to tamper with and influence elections. Hence, constitutionalism and rule of law under the CPC still seems rather remote.

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Rule of Law: A Tort Law Perspective Fozia Nazir LONE1

(1) Introduction 9.01 The Rule of Law has many corollaries: equality before the law; law and order; predictable and efficient rulings, and human rights. These ends are distinct, likely to meet different types of resistance and support within countries undergoing reform, and often are in tension with one another in practice.2 The rule of law refers to some of the fundamental principles of law that govern the way in which power is authoritatively exercised. Optimally, governmental authority is derived from law that is expressed either in legislation or in the judicial decisions made by independent courts. The corollary of rule of law demands that if there is no legal justification for governmental action, the affected person can apply to a court for compensation. This aspect translates to equality before the law. It is fundamental that under torts law all claimants, regardless of race, rank, politics or religion, are subject to the same rules. Any decision that is made without providing the litigating party an opportunity to be heard would not be legally valid.

1 2



Assistant Professor, School of Law, City University of Hong Kong Rachel Kleinfeld-Belton, ‘Competing Definitions of the Rule of Law’ (Carnegie Endowment for International Peace, 2005) accessed 17 June 2013.

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9.02 All societies endeavour to establish the rule of law, to preserve it, and to maintain it. Hence this aim makes rule of law an expression of universal values that seem to be endorsed by the United Nations as the fulfillment of justice and a condemnation of governments by and for the sole benefit of those in charge.3 The law of torts, or simply torts, covers a significant facet of civil law in common law countries and regions, including Hong Kong. In tort litigation, the claimant must prove that they are harmed by the tortfeasor’s negligence, trespass, nuisance or statutory tort. They also need to prove a causal connection between the injuries sustained and the tortfeasor’s behavior. In deciding torts claims, judges must always make choices, sometimes tragic, to uphold justice, fairness and rule of law. In this chapter, an attempt will be made to analyze the landmark cases on psychiatric illness to understand the concept of rule of law from the perspective of judge-made law. 9.03 The purpose of tort law is to ensure that the claimant is compensated for harm that was wrongfully sustained.4 The claimant is allowed recourse to the justice system against a person who has committed a wrong against him, whether it is deliberate, as in trespass, or unintentional, as in negligence. Hence, the law of torts supports the idea of the rule of law as a notion of fairness, equality and access to justice. Torts law protects the interests of the claimant and guarantees social security where the claimant’s rights are invaded by the wrongful behavior of the defendant. Thus, it protects integrity of land, goods and person, as well as

3



4



Mortimer Sellers, ‘An Introduction to the Rule of Law in Comparative Perspective’ in Mortimer Sellers and Tadeusz Tomaszewski (eds), An Introduction to the Rule of Law in Comparative Perspective (Springer 2010) 1. Tony Weir, A Casebook on Tort (10th edn, Sweet and Maxwell 2004) 1.

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the reputation and economic rights of the claimant. Finally, the law of torts functions as a social deterrent in the form of compensation that is payable by the wrongdoer. 9.04 Torts law is a body of rules created by judges, now supplemented by legislation where required. The victim’s loss is ascribed to the wrongful behavior of the tortfeasor if that fell below the reasonable man’s standards as laid down in Donoghue.5 Lord ATKIN in that case introduced an entirely new concept, the neighbour principle, into the law of negligence: ‘Love thy neighbour’ is not to be interpreted with reference to moral code, but according to certain restrictions given by his Lordship. In law, neighbour refers to ‘persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question’.6 This principle in itself is a reincarnation of justice, fairness and rule of law in the law of torts. 9.05 This chapter will review the intersection of tort law and the concept of rule of law in England. Through judgemade tort law, legitimate processes of fairness in deciding claims are applied at an individual level, adding to societal morality. Judges perform a balancing act and make choices — sometimes tragically — where policy matters are involved, making sure that rules are enforceable; this is demonstrated by the Alcock7 ruling.

5

7 6

Donoghue v Stevenson [1932] AC 562. Donoghue (n 5) 580. Alcock v Chief Constable of the South Yorkshire Police [1991] UKHL 5, [1991] 4 All ER 907.

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(2) The Alcock Decision: Control Mechanism for Psychiatric Illness (Secondary Victim) 9.06 The area of psychiatric illness, especially in the case of secondary victims, is where one can demonstrate obedience of judge-made law to rule of law. Historically, courts were reluctant to award damages or recognise a duty of care owed to secondary victims for a variety of reasons, most importantly because secondary victims sustained no physical injury. In Hambrook v Stokes Bros,8 the plaintiff, who was not herself in danger, suffered shock, fearing for her child’s safety. The court refused to recognise the duty of care, as injury or fear of such injury was not experienced by the plaintiff herself. Likewise, in Bourhill v Young,9 the plaintiff was pregnant and suffered shock resulting from hearing the sound of a collision between a motorcyclist and a car 40 or 50 feet away. She did not experience any shock at that time but claimed that this resulted in the stillbirth of her baby. The court rejected this claim and held that as a bystander, the plaintiff was a secondary victim and was merely emotionally disturbed. Furthermore, the court found that the defendant’s reckless driving did not seem to be the cause of such shock and could not be reasonably foreseen; the plaintiff was not in proximity of danger. 9.07 It was in Alcock10 that the court revisited the circumstances as provided in McLoughlin11 for imposition of duty of care in the secondary victim cases of psychiatric illness and also clarified the immediate aftermath test. McLoughlin was the first step towards the emergence of modern law on secondary victims. The plaintiff in McLoughlin, witnessed

 8

10 11  9

[1925] 1 KB 141. [1943] AC 92. Alcock (n 7). Mcloughlin v O’Brien [1983] AC 410.

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the death of one of her daughters and the physical suffering of other family members as a result of a car accident. The claimant suffered psychiatric illness and sued the person who had caused the accident. The Trial Court and Court of Appeal rejected her claim, but the House of Lords allowed it, reasoning that reasonable foreseeability established the existence of the defendant’s duty of care and that the law covered a situation where the claimant did not see or hear the accident itself but had witnessed its immediate aftermath. Lord WILBERFORCE stated that although the reasonable foreseeability was the requirement, it was not in itself the sole determinant for duty of care. The court stressed that various matters of policy had to be considered in placing limits on the extent of the duty of care based on the ‘aftermath test’. To impose liability on defendant for psychiatric injury caused to secondary victims he enumerated three factors that must be satisfied, namely: (1) the proximity of the secondary victim to the accident; (2) the means by which the shock was caused; and (3) closeness of ties with the person or persons imperilled (immediate victim). Lord WILBERFORCE opined that [A]s regards proximity to the accident, it is obvious that this must be close in both time and space. It is after all, the fact and consequence of the defendant’s negligence that must be proved to have caused the “nervous shock”. Experience has shown that to insist on direct and immediate sight or hearing would be impractical and unjust and that under what may be called the “aftermath doctrine”, one who, from close proximity comes very soon on the scene, should not be excluded…12

12

[1983] AC 410. See also Mark Lunney and Ken Oliphant, Tort Law Text and Materials (4th edn, Oxford 2010) 340.

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9.08 However, Lord WILBERFORCE did not define the immediate aftermath test completely. The case of Alcock provided some clarification but despite explanations, Lord STEYN has described law in this area as ‘a patch work quilt of distinctions which are difficult to justify’.13 Some scholars consider the immediate aftermath test approach to providing compensation in secondary victim cases unsatisfactory, as arbitrary restrictions on recovery are imposed.14 Nonetheless, it has been argued that, despite imperfections, a robust control mechanism has been put in place by Alcock to deal with secondary victims; said mechanism focuses on the foreseeability of the psychiatric injury in each circumstance. 9.09 The Alcock case was brought by several claimants in the aftermath of Hillsborough disaster in 1989, where 96 Liverpool fans died in a massive crush during the FA Cup Semi-Final at Hillsborough Stadium in Sheffield. The incident was televised live and the recordings were broadcasted several times. The plaintiffs in this case were mostly secondary victims, i.e., they were not ‘directly affected’ as opposed to the primary victims who were either injured or were in danger of immediate injury. Sixteen claims were brought against the Chief Constable of the South Yorkshire Police for psychiatric injury. Out of sixteen claims, only four plaintiffs were present on the scene but not at the exact location of the stampede. Both the Taylor Report and the Hillsborough Independent

13

[1999] 2 AC 455, 500. Michael A. Jones, ‘Liability for Psychiatric Illness - More Principle, Less Subtlety?’ (1995) 4 Web Journal of Current Legal Issues. accessed 18 June 2013.

14

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Panel (2012)15 suggest the accident was caused by police negligence in allowing excessive crowds, including ticketless and drunk supporters, to assemble in one part of the stadium. In the aftermath of this accident, the courts had to decide the very difficult issue of what standards should be applied to compensate the secondary victims in the most plausible matter so that it not only limited the effects of tragedy but also dealt with it in least offensive way. Many of the secondary victims alleged that they had seen their friends and relatives die while watching the live broadcast. They alleged suffering psychiatric harm after the incident. 9.10 Three claims reached the House of Lords in Alcock,16 Hicks17 and White.18 All of these claims discuss various aspects of the disaster but it was Alcock where the eyewitnesses and television viewers, who were relatives of victims, brought claims against the defendant. Their claims were rejected by applying the aftermath test, which was further developed by their Lordships. It was clarified by the court that the claimant who is a secondary victim must witness a shocking event with his own unaided senses, as an eyewitness to the event, or hearing the event in person, or viewing its ‘immediate aftermath’. The assessment was based on two important perspectives: whether the person was himself involved as a secondary victim (participant) or whether he was only passive spectator to injury caused to others. The Judicial Committee of the House of Lords, consisting of Lord KEITH,

15

Hillsborough Independent Panel, The Report of the Hillsborough Independent Panel (The Stationery Office, September 2012). 16 Alcock (n 7). 17 [1992] 2 All ER 65. 18 White or Frost v Chief Constable of South Yorkshire Police (1999) 2 AC 455 (HL).

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Lord ACKNER, Lord OLIVER, Lord JAUNCEY, and Lord LOWRY, established a number of ‘control mechanisms’ that must be fulfilled in order for a duty of care to be found in such cases, namely that the claimant: (1) had a close tie of love and affection with the person killed, injured or imperiled; (2) was close to the accident in time and space; and (3) directly perceived the incident rather than, for example, hearing about it from a third person.19

(3) Closeness of Ties 9.11 The class of persons to whom a duty might be owed for psychiatric illness is not limited by reference to particular relationships, although the closeness of ties is likely to be presumed between spouses, parents and children. Relationships of love and affection would not normally be regarded as close in cases of siblings, grandparents, uncles and aunts, unless the plaintiffs can show in fact such a close relationship existed. For instance, a plaintiff in one case had to convince the court that he had a particularly close relationship with his brother.20 9.12 In Alcock, Lord KEITH wrote: [O]f the present appellants two, Brian HARRISON and Robert ALCOCK, were present at the Hillsborough ground, both of them in the West Stand, from which they witnessed the scenes in pens 3 and 4. Brian HARRISON lost two brothers, while Robert ALCOCK lost a brother-in-law and identified the body at the mortuary at midnight.

19

See also Weir (n 4) 107. Paula Giliker and Silas Beckwith, Tort (4th edn, Sweet & Maxwell 2011).

20

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In neither of these cases was there any evidence of particularly close ties of love or affection with the brothers or brother-in-law. In my opinion the mere fact of the particular relationship was insufficient to place the plaintiff within the class of persons to whom a duty of care could be owed by the defendant as being foreseeably at risk of psychiatric illness by reason of injury or peril to the individuals concerned. The same is true of other plaintiffs who were not present at the ground and who lost brothers, in one case a grandson. I would, however, place in the category of members to which risk of psychiatric illness was reasonably foreseeable Mr and Mrs COPOC, whose son was killed, and Alexendra PENK, who lost her fiancé. In each of these cases the closest ties of love and affection fall to be presumed from the fact of the particular relationship, and there is no suggestion of anything which might tend to rebut that presumption.21 9.13 This distinction has been said to make practice very ‘messy’22 and even cause ‘perplexity to advisers and embarrassment to litigants’.23 This criterion for assessment might be perceived as harsh but it is very practical in closing the floodgates to unlimited claims. It is important to remember that a tortfeasor does not owe any duty of care to those who are not close enough to be in his or her contemplation at the moment of the tortious act (or omission). As clarified by the Caparo24 case, the neighbour

21

23 24 22

Alcock (n 7) (Lord Keith). Lunney and Oliphant (n 12) 345. ibid. Caparo Industries Plc v Dickman [1990] UKHL 2, [1990] 2 AC 605.

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principle is based not only on foreseeability and proximity but also on considerations of fairness and justice, which constitutes the spirit of ‘rule of law’. The Alcock reasoning was later applied in White,25 where the plaintiffs were policemen who suffered psychiatric harm as a result of their involvement in Hillsborough stadium disaster. The claim was rejected by the House of Lords, and it was held that the claimants were in no special position just because the shocking incident was due to the negligence of their employer. They also failed to satisfy the Alcock test; the House of Lords held that the defendant was not liable as the plaintiffs were only secondary victims and did not have a close relationship with the victims.

(4) The Proximity Test 9.14 In Alcock, it was held that there must be a high degree of proximity to the accident in time and space. The plaintiff must normally witness the accident when it actually occurs or must come upon its ‘immediate aftermath’ within a very short span of time. In Alcock, Lord KEITH considered an Australian case, Jaensch v Coffy,26 where DEANE J said that ‘the aftermath of the accident extended to the hospital to which the injured person was taken and persisted for so long as he remained in the state produced by the accident up to and including immediate post-accident treatment’.27 In Jaensch, the plaintiff was a wife who went to the hospital where her husband was admitted. She saw him, before and between emergency operations, suffering

25

White v Chief Constable of South Yorkshire Police & Ors [1999] 2 AC 455. (1984) 54 ALR 417. 27 ibid (Deane J), as quoted in John Cooke, Resources from Law of Tort (9th edn, Pearson Longman 2009) 74, 75. 26

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tremendous pain due to the injuries. She was eventually awarded damages.28 9.15 The Alcock court held that watching pre-recorded pictures did not satisfy temporal proximity, nor did watching live broadcasting. First, the broadcaster did not show suffering of identifiable individuals. If that had not been the case, then instead of the police, the broadcaster could have been liable for the plaintiffs’ psychiatric injury. Second, the pictures were shown using numerous cameras and secondary victims would not have seen them with their ‘unaided senses’ had they been in the stadium. Consider also that the code of ethics for broadcasting would prohibit any ‘graphic coverage of individual suffering’.29 Although the court noted that live broadcasting in some exceptional situations may qualify, the court did not set out rules for determining when. NOLAN LJ in the Court of Appeal only gave an example of parents watching a live broadcast show on which a balloon carrying their beloved children was unexpectedly engulfed by fire.30 It should be noted that in some situations, medical evidence suggests that there is a much stronger reaction from being able to hear the death of a loved one than seeing it, because the human mind is prone to construct an image of the event more horrifying than the reality.31 The claimant must prove that his psychiatric injury resulted from trauma caused by sudden shock after witnessing the event or its immediate aftermath. The court opined that the shock must not be

28

30 31 29

John Hodgson and John Lewthwaite, Tort Law (2nd edn, OUP 2007) 136. John Murphy and Christian Witting Street on Torts (13th edn, OUP 2012) 82 Jones v Wright [1991] 3 All ER 88, 122 (Nolan LJ). Martin Matthews, Jonathan Morgan and Colm O’Cinneide, Hepple and Matthews’ Tort Cases and Materials (6th edn, OUP 2009) 131.

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caused by subsequent reflection or lengthy exposure to distress. In the court’s review of the causes of trauma, it was suggested that the transmitted images were not the sole culprit for the psychiatric injuries caused to claimants; rather, it was a combination of events that resulted in grief. The judges for this reason suggested that a claimant must prove that his psychiatric illness resulted from trauma caused by sudden shock alone. However, as seen in Jaensch, the courts may be prepared to award damages to the plaintiff where shock was not very sudden but took many hours to occur. This will be guided by circumstances of each case.

(5) The Means by which the Shock is Caused 9.16 To succeed in a claim for psychiatric injuries, the plaintiff may not be merely informed of the accident by a third party. This was the position in Ravenscroft v Rederiaktiebolaget Transatlantic.32 Watching accidents on live television was also denied by the House of Lords in ALCOCK as direct cause of injury.33 9.17 In Alcock, Lord KEITH said: [T]hese three all watched scenes from Hillsborough on television, but none of these depicted suffering of recognizable individuals, such being excluded by the broadcasting code of ethics, a position known to the defendant…the viewing of these scenes cannot be equiparated with the viewer being within “sight or hearing of the event or of its immediate aftermath”

32 33

[1992] 2 All ER 470. Lunney and Oliphant (n 12) 347.

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… nor can the scenes reasonably be regarded as giving rise to shock, in the sense of a sudden assault on the nervous system. They were capable of giving rise to anxiety for the safety of relatives known or believed to be present in the area affected by the crush, and undoubtedly did so, but that is very different from seeing the fate of the relative or his condition shortly after the event. The viewing of the television scenes did not create the necessary degree of proximity.34

(6) Conclusion 9.18 It is the judiciary that ultimately decides what the law is. Public confidence demands that the rule of law be respected, above all, by the judiciary.35 Tort law is based on the idea that, to a certain extent, each person has a responsibility for others (i.e., not to harm them) and hence demands that individuals take personal responsibility when taking risks.36 In the Alcock case, their Lordships articulated a ‘control mechanism’ to avoid a floodgate effect and to insure that where psychiatric harm is caused by witnessing the death or injury of another person, the claimant must show a proximate relationship of love and affection to the immediate victim. Where it is shown that some psychiatric damage was foreseeable, the defendant must ‘take his victim as he finds him’ and pay for all the

34

Alcock (n 7) (Lord Keith). Murray Gleeson, ‘Courts and the Rule of Law’ (The Rule of Law Series, Melbourne University, 7 November 2001) accessed 18 June 2013. 36 J. Steele, Tort Law: Text, Cases and materials (OUP, 2007) see generally chapter 1 35

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consequences of psychiatric harm. Alcock demonstrates that the law of torts has a deep relationship with justice, fairness and equity, and that judges, through their critically reasoned decisions, not only promote moral legitimacy in the society but also guarantee legal accountability.

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The Rule of Law in Austria: The Constitutional Framework for Austrian Civil Procedure Walter H. RECHBERGER1

(1) Introduction 10.01 Judicial independence is one of the most fundamental principles in the area of civil procedure law. It is a principle that has gained Professor Anton COORAY’s special interest throughout his academic career. So it is not a surprise that I had the pleasure to get to know my honored colleague and friend at conferences organised by the International Association of Judicial Independence and World Peace. Judicial independence is one of the main characteristics of Austrian civil procedure law, as set forth in Art. 87 of the Austrian Federal Constitutional Act (Bundes-Verfassungsgesetz) (FCA). Therefore, part of this chapter, dedicated to my esteemed colleague, shall discuss this principle with regard to Austrian state courts and their judges. 10.02 In accordance with the title of this Liber amicorum, I will also address the issue of the rule of law from an Austrian perspective by giving a brief overview of the relevant statutory provisions and their legal impact on civil procedure law. The main focus will be on Austrian constitutional law, and therefore especially on the FCA and the European Convention on Human Rights (ECHR).

1



Prof. DDr. h.c. Dr., University of Vienna, Department of Civil Procedure Law.

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(2) The Rule of Law in the European Union 10.03 Before going into detail on Austrian regulations, I shall briefly address the European perspective. Austria has been a member of the European Union since 1995. According to Art. 2 of the Treaty on European Union, the Union is founded on certain values, including the respect for human dignity, freedom, democracy, equality and human rights; the fulfillment of these can indicate the extent to which a state embraces the rule of law. These values are common to the Member States in a society in which pluralism, nondiscrimination, tolerance, justice, solidarity and equality between women and men prevail. The European concept of the rule of law is based on the national notions of said principle.2

(3) The Rule of Law in Austria — Das Rechtsstaatsprinzip 10.04 Enacted in 1920 and re-adopted in 1945, the FCA is based on different fundamental principles.3 The democratic principle, the republican principle, the federal principle, the separation of powers and again, the rule of law,4 are certainly the most prominent flagstones of the Austrian Constitution. Some scholars do not consider the separation of powers as a separate principle but attribute a place within the rule of law to it.5 Whenever a total revision of these principles is considered, a referendum among

2



3



4



5



Walter Obwexer, in Heinz Mayer and Karl Stöger (eds), EUV/AEUV (Manz 2011) Art. 2 EUV 26. Theo Öhlinger and Harald Eberhard, Verfassungsrecht (9th edn, Facultas.wuv 2012) 66 et seq; Robert Walter, Heinz Mayer and Gabriele Kucsko-Stadlmayer, Bundesverfassungsrecht (10th edn, Manz 2007) 146. Walter H. Rechberger, ‘Austria’ in Piet Taelman (ed), International Encyclopaedia of Laws: Civil Procedure (Kluwer Law International 2011) 3. Walter Berka, Lehrbuch Verfassungsrecht (4th edn, Springer 2012) 115.

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Austrian citizens must be held; as for a partial revision, a referendum is only compulsory if one third of the members of the National Council or the Federal Council so demands (Art. 44, FCA).6 10.05 Although the Austrian ‘Rechtsstaatsprinzip’ (or ‘RECHTSSTAATLICHES PRINZIP’) is similar to the notion of ‘the rule of law’, there is a difference. In the following pages, I will focus on the ‘Rechtsstaatsprinzip’ as it is understood in Austria, without going into detail on the differences between the Austrian principle and the international perception of the rule of law. I will, nevertheless, use the phrase ‘rule of law’ throughout the chapter to refer to Rechtsstaatsprinzip.7 10.06 The rule of law has two aspects: on the one hand it requires public administration to be based on law. On the other hand, individuals can pursue their rights not only in penal or civil cases, by means of the ordinary court system, but also for administrative purposes, by addressing the respective administrative authorities (or by being addressed by them).8 For civil procedure, the rule of law requires: (1) all jurisdiction to be based on law and (2) independent civil courts.9

(4) Jurisdiction Shall be Based on Law 10.07 The first aspect of the principle of rule of law is the fact that the jurisprudence shall be based on law.

6



7

9 8

Heinz Mayer, Das österreichische Bundes-Verfassungsrecht (4th edn, Manz 2007) 223 et seq; Berka, Lehrbuch Verfassungsrecht (n 5) 111. Rechberger, ‘Austria’ (n 4) 3. Rechberger, ‘Austria’ (n 4) 7. Öhlinger and Eberhard, Verfassungsrecht (n 3) 74.

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10.08 Basic Principle. Art. 18 of the Austrian FCA stipulates that the entire public administration shall be based on law. Executive authorities are only entitled to act in accordance with the provisions explicitly laid down in the FCA, in constitutional and other laws, in regulations and in other legal acts. 10.09 Art. 18 only refers to public administration. However, it is generally accepted that decisions by state courts must also be based on law.10 Austrian constitutional law assumes the applicability of this principle to state courts.11 That is why the legislature did not consider it necessary to reiterate this principle specifically for courts. 10.10 When dealing with civil law cases, attention must be paid to the principle of private autonomy, which is certainly not the case in administrative matters. These two different approaches have an impact on the understanding of the rule of law, especially since public administration and jurisdiction must be based on law. As a result, the term ‘rule of law’ is not as thorough and stringent in civil law as in administrative law cases.12

10

Austrian Constitutional Court 05.10.1989, G 70/89, Nr. 12.185; Oskar Ballon, ‘Der Einfluß der Verfassung auf das Zivilprozeßrecht‘ [1983] 96 ZZP 409, 443; Öhlinger and Eberhard, Verfassungsrecht (n 3) 625; Oskar Ballon, ‘Einige Probleme der richterlichen Rechtsfortbildung‘ [1972] JBl 598, 600; Rüffler, ‘Analogie: Zulässige Rechtsanwendung oder unzulässige Rechtsfortbildung‘ [2002] JPR 60, 65 et seq. 11 Theo Öhlinger, ‘Legalitätsprinzip und Europäische Integration — Zur Gesetzesbindung des Verwaltungshandelns aus der Sicht des EU-Beitritts‘, in Österreichische Parlamentarische Gesellschaft (ed), Festschrift aus Anlaß des 75. Jahrestages der Beschlußfassung über das Bundes-Verfassunggesetz (Verlag Österreich 1995) 635, 636 et seq; Walter, Mayer and Kucsko-Stadlmayer, Bundesverfassungsrecht (n 3) 572; Mayer, Das österreichische BundesVerfassungsrecht (n 6) 133. 12 Öhlinger, ‘Legalitätsprinzip und Europäische Integration — Zur Gesetzesbindung des Verwaltungshandelns aus der Sicht des EU-Beitritts‘ (n 11) 637.

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10.11 According to Art. 89 of the Austrian FCA, courts are not entitled to examine the validity of duly published regulations, proclamations on the republication of a law (state treaty), laws or state treaties in general. The principle that state courts are bound by law can also be derived from this provision.13 Art. 89 reflects the idea that state courts shall only apply the law, without examining it in detail, i.e., without asking whether any provision is in violation of constitutional law. Courts are only allowed to examine whether any law was properly announced and determine whether the law was properly applied.14 If a provision is charged with violating constitutional law, only the Austrian Constitutional Court (Verfassungsgerichtshof) has the power to determine — in case of an application by the Supreme Court (Oberster Gerichtshof), which is the court of final instance in civil and criminal matters, or by a competent appellate court — whether a federal or provincial law is unconstitutional in the sense of Art. 140 of the Austrian FCA. Consequently, Austria does not follow a case law system approach as common law jurisdictions do. State courts may only apply the law but they are not supposed to change the law in general.15 10.12 Development of the Law by Judicial Decisions. The Austrian FCA explicitly prohibits the development of the law by judicial decisions. Moreover, the development of the law by judicial decisions contradicts the principle of

13

Berka, Lehrbuch Verfassungsrecht (n 5) 813; Robert Walter, Verfassung und Gerichtsbarkeit (Manz 1960) 58. 14 Öhlinger and Eberhard, Verfassungsrecht (n 3) 626; Hans W. Fasching in Hans W. Fasching and Andreas Konecny (eds), Kommentar zu den Zivilprozeßgesetzen I (2nd edn, Manz 2000) Einleitung mnr 19. 15 Cf Walter H. Rechberger, ‘Die Methode im Zivilprozesse — in Stiefkind?‘ in Clemens Jabloner, Gabriele Kucsko-Stadlmayer, Gerhard Muzak, Bettina Perthold-Stoitzner and Karl Stöger (eds), Festschrift Heinz Mayer (Manz 2011) 595, 597.

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separation of powers.16 Hence, the general principle is that judges are not supposed to develop new regulations. 10.13 However, a state court judge may certainly be confronted with a situation that is not covered by a specific legal provision and a legal problem that cannot be solved by mere interpretation. What can a judge do in such a situation rather than developing a new rule? In this situation, the creation of law is permitted in order to compensate for the legislature’s silence on the specific issue.17 But what about a legal provision that does not seem to be appropriate anymore due to changes in society? 10.14 Section 7 of the Austrian Civil Code deals with this situation by allowing the consideration of general legal principles in cases of doubt. Additionally, section 502 of the Austrian Civil Procedure Code (CPC) states that the revision of a decision of an appellate court is permissible if the decision depends on the solution of a legal question having fundamental significance for the uniformity, certainty and development of the law. The Austrian Supreme Court can thereby promote the development of law by introducing new and modifying existing practices.18 10.15 In Austrian civil procedure law, there are several examples of the development of law by judicial decision.19 Although the Constitutional Court rescinded the section of the

16

Ballon, ‘Einige Probleme der richterlichen Rechtsfortbildung‘ (n 10) 600; Rüffler, ‘Analogie: Zulässige Rechts-anwendung oder unzulässige Rechtsfortbildung‘ (n 10), 66. 17 Fasching in Fasching and Konecny (n 13) Einleitung mnr 110. 18 Alfons Zechner in Hans W. Fasching and Andreas Konecny (eds), Kommentar zu den Zivilprozeßgesetzen IV/1 (2nd edn, Manz 2005) § 502 ZPO mnr 56. 19 Rechberger, ‘Die Methode im Zivilprozess — ein Stiefkind?’ (n 15) 600 et seq.

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CPC regarding the binding effect of a criminal verdict on subsequent civil procedures, the Austrian Supreme Court reintroduced this principle without any legal basis.20 Another example is the binding effect of a civil judgment on subsequent proceedings against third persons that could have intervened in the previous proceeding.21 10.16 Conclusion. Two further aspects are worth considering with regard to the above. First, decisions of the Austrian Supreme Court are final and binding and cannot be reviewed by the Austrian Constitutional Court. To a certain extent, this means that the Austrian Supreme Court has free rein to develop law. Second, according to section 8 of the Supreme Court Act, the Supreme Court can only deviate from established case law or decisions by convening a panel of 11 judges (verstärkter Senat).22 10.17 The development of law by judicial decision in the cases mentioned in paragraph 15 goes so far that the Austrian Supreme Court can be considered as a (supplemental) legislator.23 The contradiction to the principle of separation of powers is obvious. Although there are legal provisions indicating that the development of the law by judicial decisions is permitted, this does not answer the question

20

For detailed information, see Walter H. Rechberger, ‘Der Wiedergänger - Zur Rückkehr der Bindung an strafgerichtliche Entscheidungen im österreichischen Zivilprozessrecht‘ in Eberhard Schilken, Ekkehard Becker-Eberhard and Walter Gerhardt (eds), Festschrift für Hans Friedhelm Gaul (Gieseking 1997) 539. 21 For detailed information see Walter H. Rechberger, ‘Der österreichische Oberste Gerichtshof als (Ersatz )Gesetzgeber’ in Reinhold Geimer (ed), Festschrift für Rolf A. Schütze (Beck 1999) 711. 22 Cf criticism by Ballon, ‘Der Einfluß der Verfassung auf das Zivilprozeßrecht‘ (n 10) 444 et seq. 23 Rechberger, ‘Der österreichische Oberste Gerichtshof als (Ersatz )Gesetzgeber’ (n 21) 711.

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of whether such practices are in violation of constitutional law. However, in my opinion, the importance of the principle of separation of powers has decreased since the enactment of the Austrian FCA. 10.18 Within certain limits provided by the general concept of the rule of law, the development of law by judicial decisions may be acceptable, although it should be, certainly, up to the legislature and not to the courts, to enact the necessary laws. However, considering the legal requirements and general practice, the rule of law in Austria is, in my opinion, not in danger. The jurisdiction in Austria is, as outlined above, based on the law.

(5) Courts Shall be Independent 10.19 Independence and impartiality of judges are such crucial ingredients of rule of law that they are explicitly mentioned in the Austrian FCA and in the ECHR as well. 10.20 Independence of State Court Judges. Art. 87 of the Austrian FCA sets out the legal framework for the independence of state court judges. Independence in the context of Art. 87 means that judges do not have to comply with any instructions given in the exercise of their judicial office.24 Independence is not a privilege for judges, but a guarantee for the people.25 On the one hand, judges are not bound by any instruction in the general exercise

24

Walter, Mayer and Kucsko-Stadlmayer, Bundesverfassungsrecht (n 3) 770; Öhlinger and Eberhard, Verfassungsrecht (n 3) 621; Walter, Verfassung und Gerichtsbarkeit (n 13) 54, 58; Robert Walter, ‘Die Gerichtsbarkeit’ in Herbert Schambeck (ed), Das österreichische Bundes-Verfassungsgesetz und seine Entwicklung (Duncker & Humblot 1980) 443, 466. 25 Walter, Verfassung und Gerichtsbarkeit (n 13) 54.

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of their judicial office; on the other hand, judges must comply with instructions when dealing with the judiciary’s administrative issues.26 10.21 The Austrian FCA, in Art. 92, also prohibits members of the federal government, provincial governments, general representative bodies or the European Parliament from being appointed as judges to the Supreme Court. This provision ensures that judicial and administrative powers are separate, in accordance with the already mentioned general principle of separation of powers.27 10.22 As pointed out earlier, judges are independent.28 Of course, however, a state court may be bound by the (final) decision of another state court. It may also be bound by a decision of an administrative authority29 or a criminal court30 regarding a preliminary question. But this deference to other judicial or administrative decisionmaking bodies does

26

Walter, Mayer, Kucsko-Stadlmayer, Bundesverfassungsrecht (n 3) 770; Öhlinger and Eberhard, Verfassungsrecht (n 3) 622; Walter, Verfassung und Gerichtsbarkeit (n 13) 62; Walter, ‘Die Gerichtsbarkeit’ (n 24) 467. 27 See Austrian FCA, Art. 94. 28 Walter, Verfassung und Gerichtsbarkeit (n 13) 54. 29 For detailed information, see Winfried Kralik, ‘Die Bindung der Gerichte an Entscheidungen der Verwaltungsbehörde’ [1975] JBl 309; Robert Walter, ‘Die Bindung der Zivilgerichte an rechtskräftige präjudizielle Bescheide nach AVG im Rahmen der Zivilprozessordnung im Vorfragenbereich’ [1996] ÖJZ 601; Martin Spitzer, ‘Die Bindungswirkung von Verwaltungsakten im Zivilprozess’ [2003] ÖJZ 48; see also Walter Schragel in Hans W. Fasching and Andreas Konecny (eds), Kommentar zu den Zivilprozeßgesetzen II/2 (2nd edn, Manz 2003) § 190 ZPO 11 et seq; Robert Fucik in Walter H. Rechberger (ed), ZPO3 (3 edn, Springer 2006) § 190 ZPO 5. 30 For detailed information, see Rechberger, ‘Der Wiedergänger’ (n 20) 539.

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not jeopardise the independence of the judge.31 The binding effect of different decisions improves legal certainty, which is one of the main ideas of the rule of law.32 10.23 In practice, judges tend to appoint the same experts over and over again, which may lead to some complacency on the part of the judge in examining said expert’s testimony. If the judge does not examine or only superficially examines the expert opinion, the parties’ right to a legally competent judge according to Art. 83 of the Austrian FCA has been violated.33 On the one hand, repeated appointments by a judge may affect the impartiality of the expert; on the other, such an approach may be beneficial.34 10.24 Art. 6 of the ECHR also provides for the independence of state courts. State courts and state court judges must make decisions on cases without undue influence

31

Regarding compliance with Art. 6 of the ECHR see Christoph Grabenwarter and Katharina Pabel, Europäische Menschenrechtskonvention (5th edn, Beck 2012) § 24 mnr 38; Walter H. Rechberger, ‘Zur Entwicklung des Zivilverfahrens in Österreich in den letzten 50 Jahren’ in Hansjörg Sailer (ed), Festschrift zum Jubiläum 50 Jahre Oberösterreichische Juristische Gesellschaft (Eigenverlag der Oberösterreichischen Juristischen Gesellschaft 2010) 54, 60 et seq; Wolfgang Peukert in Jochen A Frowein and Wolfgang Peukert, Europäische Menschenrechtskonvention (3 edn, Engel 2009) Art. 6 mnr 205. 32 Cf Ballon, ‘Der Einfluß der Verfassung‘ (n 10) 448. 33 Walter H. Rechberger, ‘Die Rechtsstellung der Beteiligten beim Sachverständigenbeweis’ [2012] SV Sonderausgabe 24, 27; Astrid DeixlerHübner, ‘Fortschreitender Einsatz von Sachverständigen (Teil I)’ [1992] RZ 251, 252; Harald Krammer, Die “Allmacht” des Sachverständigen (Orac 1990) 5, 18; Viktor Steininger, ‘Der Sachverständige in der Gerichtsbarkeit’ [1981/3] SV 9, 11; Hans Dolinar, ‘Der Sachverständigenbeweis — eine rechtsvergleichende Analyse’ in Bernhard König (ed) Festschrift Rainer Sprung (Manz 2001) 117, 132 et seq. 34 Rechberger, ‘Die Rechtsstellung der Beteiligten beim Sachverständigenbeweis’ (n 33) 27.

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from administrative authorities or the parties.35 Besides freedom from administrative and legislative influence, the main characteristics of independence are a long term of office and the general irremovability.36 These criteria are provided in Art. 88 of the Austrian FCA. According to this provision, the age at which judges must retire is to be determined by federal law. Section 99 of the Law governing the Service of the Judiciary (Richter- und Staatsanwaltsch aftsdienstgesetz) states that a judge must retire at the end of the year in which he or she turns 65 years old. Apart from that, judges may be removed from office, transferred against their will, or superannuated only in cases and ways prescribed by law and through a formal judicial decision. A temporary suspension of a judge from office may take place only by decree of the court’s president or by a higher judicial authority, together with simultaneous reference of the matter to the appropriate court.37 However, these provisions do not apply to transfers and retirements that become necessary because of changes in the courts’ organisation. In those cases, the law sets the period of time during which judges can — without the formalities otherwise prescribed — be transferred and superannuated. 10.25 It is not enough that justice be done; it must also be seen to be done.38 The mere appearance of non-independence, or undue influence, may be sufficient to challenge a judge successfully.

35

Grabenwarter and Pabel, Europäische Menschenrechtskonvention (n 31) 32; Mayer, Das österreichische Bundes-Verfassungsrecht (n 6) 668; Peukert in Frowein and Peukert (n 31) Art. 6 mnr 204. 36 Grabenwarter and Pabel, Europäische Menschenrechtskonvention (n 31) § 24 mnr 33. 37 Cf Walter, ‘Die Gerichtsbarkeit’ (n 24) 467 et seq; Walter, Mayer and KucskoStadlmayer, Bundesverfassungsrecht (n 3) 771 et seq. 38 Delcourt v Belgium App no 2689/65 (ECtHR, 17 January 1970) mnr 31; Peukert in Frowein and Peukert (n 31) Art. 6 mnr 205.

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10.26 Impartiality of a State Court Judge. Art. 6 of the ECHR inter alia provides for the impartiality of a tribunal hearing cases concerning civil rights and obligations. Impartiality means absence of prejudice or bias.39 Hence, the court must not be biased with regard to its decision or influenced by information from outside the courtroom or any pressure whatsoever. Instead, the judge must base his or her opinion on objective arguments based on what has been put forward during the trial.40 A court must be impartial both subjectively and objectively. The first refers to the personal impartiality of the judges involved. This impartiality is presumed as long as the contrary has not been proven.41 The latter refers to the way the tribunal is composed and organised; a certain coincidence or succession of functions of one or more of its members may give rise to doubts as to the impartiality of the tribunal in general or as to the specific member.42 If there are justified reasons for having such doubts, even if subjectively there is no concrete indication of personal bias, the confidence that the court must inspire in a democratic society is already in jeopardy.43 However, under specific circumstances, a party may waive the right to an impartial judge.44 10.27 Independence and Impartiality in Austrian Civil Procedure. In court proceedings, judges must be impartial

39

Piersack v Belgium App no 8692/79 (ECtHR, 1 October 1982) para 30. Marc Viering in Pieter Van Dijk and others (eds), Theory and Practice of the European Convention on Human Rights (4th edn, Intersentia 2006) 614. 41 Piersack v. Belgium (n 39) para 30. 42 Morris v United Kingdom App no. 38784/97 (ECtHR, 26 February 2002) para 58. 43 Piersack v Belgium (n 39) para 31. 44 Grabenwarter and Pabel, Europäische Menschenrechtskonvention (n 31) § 24 mnr 41; Viering in Van Dijk and others (n 40) 623. 40

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regarding each case they hear, especially in relation to the parties and the parties’ counsel. Section 19 of the Austrian Judicature Act (Jurisdiktionsnorm) states that a party may object to the participation of a judge because he is barred from hearing the case at hand or because there is reason to doubt the judge’s impartiality or independence. This standard of independence and impartiality applies to every judge. 10.28 Conclusion. The principle of independence of state court judges on the one hand, and the binding effect of decisions of administrative authorities or criminal courts on civil judgments on the other, do not seem to be compatible with each other. However, in my opinion, the principles of separation of powers on the one hand and the rule of law on the other hand preclude any other result.

(6) Other Constitutional Principles 10.29 The rule of law and the separation of powers are not the only constitutional principles concerning the law of civil procedure. In the following, I list other important constitutional provisions that form the framework for civil procedure in Austria. However, the following list is not exclusive and therefore cannot reflect the entire constitutional framework. 10.30 Art. 83 of the Austrian FCA stipulates that the constitution and jurisdiction of the courts is laid down by federal law and that no one may be deprived of his lawful judge. 10.31 According to Art. 86 of the Austrian FCA, cases shall be allocated in advance among the judges of a court for the period provided by the law on court organisation. A matter assigned to a judge in accordance with this allocation may

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be removed from that judge (by decree of the judiciary's administrative authorities) only if the judge is prevented from fulfilling his obligations or if he is unable to fulfil his duties within a reasonable time.45 10.32 Art. 86 of the Austrian FCA also deals with the appointment of judges. Generally, judges are appointed pursuant to the proposal of the Federal Government by the Federal President or, by reason of his authorisation, by the competent Federal Minister; the Federal Government or the Federal Minister shall obtain proposals for appointment from the chambers competent by the law on Court organisation. The proposal for appointment (to be submitted to the competent Federal Minister and to be forwarded by him to the Federal Government) shall comprise at least three names, but if there is more than one vacancy to be filled, at least twice as many names as there are judges to be appointed.46 Except for specific cases regulated by law according to Art. 90 of the Austrian FCA, hearings in civil and criminal cases are to be held orally and in public.47 This guarantee can also be found in Art. 6 of the ECHR, which states that in the determination of civil rights and obligations, everyone is entitled to a fair and public hearing within a reasonable time frame, conducted by an independent and impartial tribunal established by law. 10.33 Art. 92 of the Austrian FCA states — as already mentioned — that the Austrian Supreme Court is the

45

See also Walter, ‘Die Gerichtsbarkeit’ (n 24) 462 et seq. See also Walter, ‘Die Gerichtsbarkeit’ (n 24) 464 et seq; Mayer, Das österreichische Bundes-Verfassungsrecht (n 6) 312. 47 See also Walter, ‘Die Gerichtsbarkeit’ (n 24) 475 et seq; Mayer, Das österreichische Bundes-Verfassungsrecht (n 6) 326. 46

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court of final instance in civil and criminal matters. This guarantees that there is only one Supreme Court in civil matters.48

(7) Conclusion 10.34 In Austria, the rule of law and the principle of the separation of powers supplement each other — as can be seen by the example of independence of judges. On the one hand, the Austrian judge is independent from the legislature as well as from administrative authorities and is not bound by instructions of the latter. On the other hand, a state court judge is bound by a decision regarding a preliminary question, not only of another state court but also of an administrative authority or a criminal court. The Austrian Supreme Court is, to a certain degree, bound by its decisions given by way of a panel of eleven judges. It is, to sum up, these aspects that must be considered when dealing with the Austrian interpretation of the rule of law in civil proceedings.

48

Mayer, Das österreichische Bundes-Verfassungsrecht (n 6) 329.

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Rule of Law and Religious Faith and Beliefs: Dilemma for Indian Courts Rajesh SHARMA1

(1) Introduction 11.01 On 6 December 1992, a crowd mobilised by a Hindu fundamentalist organisation climbed on a mosque situated in Ayodhya, a Hindu holy town in Northern India, and started damaging the 500-year-old structure. It was demolished and razed to the ground within a short period of time. ‘What was demolished was not merely an ancient structure; but the faith of the minorities in the sense of justice and fair play of [the] majority. It shook their faith in the rule of law and constitutional processes’.2 The demolition was considered a most reprehensible act. The Government stated that ‘the perpetrators of this deed struck not only against a place of worship, but also at the principles of secularism, democracy and rule of law enshrined in our Constitution’.3 11.02 The genesis of this incidence is centred on a religious dispute based on faith and beliefs of the Hindus and the Muslims. The Hindus claim that a site in Ayodhya,

1



2



3

Assistant Professor, School of Law, City University of Hong Kong. The author would like to express his gratitude to Mr. Akhil Venkataraghavan for his able research assistance. Ismail Faruqui v Union of India, 1995 [AIR] 605 [6]. Government of India, ‘White Paper on Ayodhya’ (White Paper) (Government of India, February 1993) 1.35.

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approximately 1,500 square feet, is a sacred place of worship for Hindus because it is the birthplace of Lord Ram, a Hindu God.4 However, in the 15th century, when the Mughal Emperor Babar came to India, the temple at the birthplace of Lord Ram was destroyed by the army of Babar and on that site a mosque called Babri Masjid was built. Around the outer premises of the mosque, Hindu places of worship continued to exist, including a 10 x 17 foot elevated platform called Ram Chabutara, on which an idol of Lord Ram was kept and religious prayers, worships and rituals were performed. In 1856, during British rule, Hindus and Muslims fought for control over the site. In order to maintain law and order, the then local government erected a wall and iron gate dividing the inner part of the mosque from the outer part (courtyard), so that Muslims could offer their prayers inside and Hindus could perform their prayers in the courtyard. The iron gate was then locked and an order was issued prohibiting construction of any type at the site. During that time Hindus and Muslims had performed their prayers at the site. Though the site was controversial, it was an example of how two religions could peacefully coexist in one place in secular India. 11.03 On the intervening night of 23/24 December 1949, a few Hindu devotees scaled the wall and the iron gate dividing the inner and outer parts of the mosque and placed an idol of Lord Ram under the central dome of the mosque. According to the Hindu beliefs, the area under the central dome was the sanctum sanctorum of Lord Ram. This act caused tension between Hindus and Muslims and the local government seized the premises under Section 145 of the Code of Criminal Procedure. The interested parties

4



See the Map annexed at the end of this Chapter.

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then filed civil suits (the title suits) and the court issued an interim injunction restraining the parties from removing the idol or interfering with its worship.5 Effectively, since that date Muslims could not pray at the mosque. Only Hindu priests were allowed to perform puja (Hindu rituals of praying God) in the inner part of the disputed structure. This situation stayed unchanged for nearly 40 years. 11.04 In 1986, upon application by a Hindu citizen,6 the local district court ordered the opening of the gate leading to the inner part of the mosque and allowed Hindu devotees to perform puja at the birthplace of Lord Ram. The judge held that keeping the gate closed was unnecessary, a burden on the applicant and the other members of the public and an artificial barrier between the idols and the devotees. 11.05 After the 1986 decision, a movement to construct a Hindu temple at the site became the hot issue among a few Hindu political parties and organisations causing great tension in the community. The issue became part of the political agenda and one party even fought an election on this issue alone. Governments were elected and governments were pulled down on the issues surrounding the construction of Ram Temple. In order to build Ram Temple, Hindu devotees were called from all parts of India by Hindu political parties and organisations to come to Ayodhya on 6 December 1992. A crowd, after being instigated by the

5



6



The title suits were instituted before Civil Judge Faizabad on 16 January 1950, 17 December 1959, 18 December 1961 and 01 July 1989. Umesh Chand Pandey, a Hindu advocate who had not been a party to any of the title suits, filed an application on 25 January 1986 to permit the public to have darshan (visions of the divine) inside and to have the locks on the gate removed.

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leaders of those political groups, climbed on the mosque ‘which was defenceless and whose safety was a sacred trust in the hands of the State Government was demolished’.7 At the disputed site, a makeshift temple was erected within a few hours and Hindus began to pray and chant mantras. 11.06 The Government of India swung into action; on the same evening, the President of India imposed the President’s rule (which placed the state under direct federal rule) in the State of Uttar Pradesh (where Ayodhya is located) and dissolved the State Assembly. The incident of 6 December 1992 nevertheless led to violence in other States which resulted in a high number of deaths, injuries and destruction of properties. In order to restore harmony and the spirit of brotherhood amongst the people of India it was considered necessary by the Government to acquire the site of the disputed structure as well as suitable adjacent land for setting up a complex that could be developed to include: a Ram temple, a mosque, amenities for pilgrims, a library, a museum and other suitable facilities. Thus, the Acquisition of Certain Area at Ayodhya Ordinance 1993 (Ayodhya Ordinance) was issued on 7 January 1993. 11.07 At the same time the President of India, as directed by Article 143 of the Constitution, referred the following question to the Supreme Court of India for consideration and opinion: ‘whether a Hindu temple or any Hindu religious structure existed prior to the construction of the Ram Janam Bhumi-Babri Masjid (including the premises of the inner and outer courtyards of such structure) in the area on which the structure stood?’ Thus, a religious issue of faith and belief was referred to the Supreme Court.

7



Ismail Faruqui v Union of India [1995] AIR 605 (SC) [6].

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The constitutionality of the Ayodhya Ordinance was also challenged in the Supreme Court in Ismail Faruqui v Union of India. The court upheld the constitutional validity of the Ayodhya Ordinance. It did not answer the questions referred by the President of India, choosing instead to direct the High Court of Allahabad to review all cases related to title of the disputed site (i.e., the title suits), the earliest of which was originally filed in 1950.8

(2) Faith and Belief and the Constitution 11.08 At the heart of the dispute is the Hindu belief that the disputed site is the birthplace of Lord Ram and therefore Hindus have the right to worship there. On this issue, the Supreme Court stated in the Ismail Faruqui case that ‘right to worship is not at any and every place, so long as it can be practiced effectively, unless the right to worship at a particular place is itself an integral part of that right’.9 The court further expressed that

8



9



The first suit, Other Original Suit (O.O.S.) No.1 of 1989, Regular Suit No.2 of 1950 was instituted on 16 January 1950. The second suit was withdrawn. The third suit, O.O.S. No.3 of 1989, Regular Suit No.26 of 1959 was filed by Nirmohi Akhara, a Hindu religious group, through its Mahant (religious superior). The fourth suit, O.O.S. No.4 of 1989, Regular Suit No.12 of 1961 was filed by The Sunni Central Board of Waqfs, U.P. and 9 Muslims of Ayodhya, most of whom have died. Suit number five was filed by Bhagwan Sri Ram Birajman. Plaintiffs No.1 & 2 were stated to be represented by next friend Deoki Nandan Agarwala. Thereafter the State of Uttar Pradesh filed an application in 1987 in the High Court under Section 24 of the Civil Procedure Code seeking withdrawal of the four suits which were pending at that time before Munsif Sadar Faizabad to the High Court. By an order dated 06 January 1964 passed by Civil Judge Faizabad, the four suits were consolidated and Regular Suit No.12 of 1961 (Suit No.4) was made the leading case on the agreement of all the parties. For the purpose of our discussion all these cases will be jointly referred hereinafter as the ‘Ayodhya Case’. Ismail Faruqui v Union of India [1995] 605 (SC) [82].

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Places of worship of any religion having particular significance for that religion, to make it essential or integral part of the religion, stand on a different footing and have to be treated differently and more reverentially.10

Under this reasoning, if Hindus wanted to protect or exercise their right to worship at the disputed site then they had to prove that offering of prayers or worship at the disputed site was an essential and integral part of the Hindu religion. Right of worship is protected by the Constitution of India under Article 25. Article 25(1) guarantees that ‘all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion’. Article 26 further guarantees that ‘every religious denomination or any section thereof shall have the right … to manage its own affairs in matters of religion’. Protecting the constitutional guarantees of right to freedom of religion within the context of the secular India while deciding any issues of religious faith and belief, is a very delicate task for the courts.

11.09 When a court is faced with an issue of belief, the court cannot sit in judgment of that belief; it must, as a secular institution, accept that belief. Nevertheless the court may judge whether a particular belief is an essential part or practices of the religion. In Jamshedji Cursetjee Tarachand v Soonabai, the court specifically said: If this is the belief of the Community and it is proved undoubtedly to be the belief of the Zoroastrian community — a secular Judge is bound to accept that belief — it is not for him to

10

Ismail Faruqui v Union of India [1995] AIR 605 (SC) [78].

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sit in judgment on that belief. [H]e has no right to interfere with the conscience of a donor who makes a gift in favour of what he believes to be the advancement of his religion and the welfare of his community or mankind.11

In deciding the Tarachand case, the court heavily relied on the judgment in Attorney-General v Delaney in which LJ FITZGIBBON ends his judgment by saying: The fruition of faith, “the evidence of things not seen”, is hidden from humanity. It is not within the power of any earthly tribunal to entertain the question whether these propositions are true. But it is for us to decide that belief in their truth is part of the faith of the members of the Church which has laid them down.12

11.10 In Bijoe Emmanneul v State of Kerala, the plaintiffs were three children who belonged to a religion called Jehovah’s Witnesses. According to their religion they worshipped only Jehovah the Creator and none other. It was against the tenets of their religious faith to sing anything other than songs worshipping Jehovah. Therefore, they refused to sing the national anthem. They had no objections to the words or the thoughts of the national anthem but refused to sing it. However, they did stand in respectful silence daily during the morning assembly when the national anthem was sung. The Supreme Court held that ‘If the belief is genuinely and conscientiously held as part of religion or its profession, then regardless of our personal

11

Jamshedji Cursetjee Tarachand v Soonabai [1907], 1 Ind. Cases 834 [166–171]; ILR [1909] 33 Bom. 122. 12 Attorney-General v Delaney [1875] I.R. 10 C.L. 104.

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views, it attracts the protection of Art. 25 subject to the inhibition mentioned therein’.13 Therefore, Indian courts from the time of the British period as well as after the adoption of the Constitution have refrained from judging the belief and faith of any religion in India. 11.11 In Commissioner of Police v Acharya J. Avadhutananda, the Supreme Court held that constitutional protection is not only for doctrines or beliefs. It is also extended to acts done in pursuance of religion. Therefore, the Constitution also contains ‘a guarantee for rituals, observances, ceremonies and modes of worship which are essential or integral part of religion’.14 The Court further stated: What constitutes an integral or essential part of religion has to be determined with reference to its doctrines, practices, tenets, historical background etc. of the given religion. What is meant by “an essential part or practices of a religion” is now the matter for elucidation. Essential part of a religion means the core beliefs upon which a religion is founded. Essential practice means those practices that are fundamental to follow a religious belief. It is upon the cornerstone of essential parts or practices the superstructure of religion is built. Without which, a religion will be no religion.15 11.12 The court may apply the test to determine whether a part or practice is essential i.e., the ‘core’ of the religion which is to find out whether the nature of religion will be changed

13

Bijoe Emmanneul v State of Kerala [1987] AIR 748 (SC) [20]. Commissioner of Police v Acharya J. Avadhutananda [2004] (12) SCC 770 (SC) [9]. 15 ibid. 14

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without that part or practice. If the taking away of that part or practice could result in a fundamental change in the character of that religion or in its belief, then such part could be treated as an essential or integral part. There cannot be additions or subtractions to such part because it is the very essence of that religion and alterations will change its fundamental character. It is this permanent part that is what is protected by the Constitution.16 11.13 It is important to note that not every mundane human activity is intended to be protected by the Constitution under the ambit of Articles 25 and 26. The Constitutional protection must be viewed with pragmatism. The courts have also accepted that ‘by the very nature of things it would be extremely difficult, if not impossible, to define the expression “religion” or “matters of religion” or “religious beliefs or practice”’.17 In a court of law, whether a practice in question is religious in character and whether that practice is regarded as an integral and essential part of the religion has to be proved by adducing evidence. Based on the evidence, if the court finds that such practice is an essential and integral part of a religion, only then can Article 25 protection can be accorded to that practice.18 11.14 The Hindu religion has been deeply rooted in Indian society from time immemorial, as evidenced in ancient religious texts. It is also said that Hinduism is not just a religion; it is a way of life. Hindu devotees worship God, idols and also a place. However, in Islam, idol worship is not allowed and prayers are offered in Mosque or at any

16

ibid. Sri Adi Vishweshwar of Kashi Vishwanath Temple and Others v State of Uttar Pradesh and Others [1997] (4) SCC, 606, (SC) [31]. 18 ibid [28].

17

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place as long as the devotees face the West direction. In Islam there is only one Allah. Conversely, there are many Gods in the Hindu religion; nevertheless Hindus believe there is only one Ultimate Supreme God. Therefore, Hinduism cannot be categorised as polytheist (belief in many gods), henotheist (belief and worship of a single god while accepting the existence or possible existence of other deities) or monotheist (belief in one god to the exclusion of others). Rather, Hinduism ultimately is monist (a spiritual belief of one ultimate supreme being that manifests as many) in nature. This is the reason why Hindus worship any deity either handed down by tradition or brought to light by a guru or swambhu (self-manifested or that which is created by its own accord). Hindus believe that God, from time to time, descends to the Earth in the form of an avatar (Human form of God) which millions of Indians worship. Lord Ram is an avatar of the God Vishnu according to Hindu faith and belief. As with all religions, not all aspects of Hindu scriptures can be corroborated, but to believers, the scriptures are historical in nature and not mere fiction.19

(3) Determination of Faith and Belief: Ayodhya Case 11.15 In the Ayodhya case, one lawyer appearing on behalf of the Hindu parties argued that ‘the disputed site since ancient and time immemorial has been held and believed to be the place of birth of Lord Rama according to the faith and belief of Hindus, which they worship by tradition, constantly, and this right of Hindus cannot be disturbed at all’.20 The argument was mainly supported by religious

19 20

Ayodhya Case [4382] [Agarwal J]. Ayodhya Case [3499] [Agarwal J].

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books and scriptures as old as 3,000 years, travelogues of foreign visitors, and old Gazettes. The Hindu parties also argued that: [T]here is no other Ayodhya. Janamsthan (the birth place of Lord Ram) at Ayodhya was always treated as sacred and except the place in dispute, no other place in Ayodhya from ancient time has been treated as birthplace of Lord Ram. It has been worshipped from generation to generation and, therefore, forms [the] core belief of Hindus that Lord Ram was born at the aforesaid site at Ayodhya.21

It was also argued that Lord Ram as [an] incarnation of Vishnu having [been] born at Ayodhya forms an integral part of [the] Hindu religion the practice, observation and performance of which cannot be denied.22 The Hindu parties submitted that ‘the right of Hindus to worship at such a place is a fundamental right under Article 25 and 26 of the Constitution’.23

11.16 Another lawyer for the Hindus argued that ‘the place in dispute has long been worshipped as [the] place of birth of Lord Ram in tradition uninterruptedly and even if any Muslim ruler has made some construction over it, the worship by Hindus has continued which leads to the conclusion that it is the place which is believed to be the place of birth of Lord Ram’.24 For thousands of years, Lord Ram has been worshipped as an incarnation of God by Hindus. It was argued that:

21

23 24 22

Ayodhya Case [3500] [Agarwal J]. Ayodhya Case [3501] [Agarwal J]. Ayodhya Case [3500] [Agarwal J]. Ayodhya Case [3504] [Agarwal J].

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if it can be shown that for a particular place, the Hindu’s belief is that it is the site of birth place of Lord Ram and such faith and belief can be shown to have existed for the time immemorial, the Courts must give respect to such belief and must take it [to be] correct without entering into correctness of such a belief since that would violate Article 25 of the Constitution of India.25

At the same time, the lawyer acknowledged that the Hindu scriptures contained the time, manner of calculation and other details relating to the time of birth of Lord Ram several lakhs (a unit in the South Asian numbering system equal to 100,000) of years back. The birthday of Lord Ram is celebrated as a festival by Hindus in India. Therefore, as the lawyer argued, ‘it is beyond the scope of judicial scrutiny at this stage to find out as to when and where Lord Ram [was born] since no evidence direct or indirect in this regard by lapse of time would be expected’.26

11.17 It is important to note that lawyers from the Muslim side gave their statement under Order X, Rule 2 of the Civil Procedure Code (Oral Examination of Party) and categorically stated that the Muslim parties ‘did not dispute that Lord Ram was born at Ayodhya (previously this was also an area of dispute between the parties)’.27 Even during the course of arguments, the lawyer from the Muslim side repeatedly contended that ‘it was not disputed that Lord Ram was born at Ayodhya, however they very seriously disputed the assertion that Lord Ram was born at

25

Ayodhya Case [3504] [Agarwal J]. Ayodhya Case [3504] [Agarwal J]. 27 Ayodhya Case 232 [Khan J]. 26

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the premises in dispute’. In particular, another lawyer from the Muslim party gave a statement under the same Order that: For the purposes of this case there is no dispute about the faith of Hindu devotees of Lord Rama regarding the birth of Lord Rama at Ayodhya as described in Balmiki Ramayana or as existing today. It is, however, disputed and denied that the site of Babri Masjid was the place of birth of Lord Rama. It is also denied that there was any Ram Janam Bhoomi Temple at the site of Babri Masjid at any time whatsoever.28 11.18 The two sides agreed on two things: first, that Lord Ram was the deity of the Hindus and second, the faith and belief of the Hindus that Lord Ram was born in Ayodhya. The only issue that remained in dispute was whether the disputed site was the birthplace of Lord Ram in Ayodhya. In this context, during the arguments, the court posed the following question to each lawyer for the Hindu side: ‘according to his party, the 1,500 square yards premises in dispute was the Lord Ram’s birth-place/land (Janam Asthan/Bhoomi), nothing but birth-place/land and the whole birth-place/land’.29 In response, they all replied in the affirmative. In return, the lawyers from the Hindu party argued, by process of elimination, that ‘as no other place in Ayodhya was worshipped as the birth place and as Muslims have not been able to point out any other such place hence [the] premises in dispute is the birth-place’.30 A

28

Ayodhya Case 233 [Khan J]. Ayodhya Case 232 [Khan J]. 30 Ayodhya Case 232 [Khan J]. 29

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follow-up question was then asked to the Hindu lawyers about what , ‘according to them, the words ‘Janam Asthan’ or ‘Janam Bhoomi’ denoted in the context of this question denoted, i.e., whether it meant the exact site where Kaushallia the mother of Lord Ram gave birth to him (which from its very nature could be very very small area of 5 to 10 square yards only) or [whether] it meant the room in which the birth took place or [whether] it meant the mansion where mother of Lord Ram resided’.31 It was not a surprise for the Court that no lawyer from the Hindu side could give any specific reply to that question. 11.19 The Court accepted the argument from the Hindu side that ‘no one is supposed to point out [the] place of birth of Lord Rama like finding out a correct residential address in the present time’.32 However, as the Court pointed out, if it was agreed that the Ayodhya was the place where Lord Ram was born then there must be a place in Ayodhya where Lord Ram was born. Lawyers for the Hindu side argued that even in present day, it was difficult to locate the place of birth just two or three generations back; in the case of Lord Ram, finding the exact place in Ayodhya was ‘almost impossible’.33 The Court stated that it had to judge the matter ‘in the given set of facts and circumstances in a reasonable and plausible manner, which is not impossible’.34 The Court in this case looked to Section 3 of the Evidence Act, which states ‘A fact is said to be proved when, after considering the matters before it the Court either believes [it] to exist or considers its

31

33 34 32

Ayodhya Case 235 [Khan J]. Ayodhya Case [4387] [Agarwal J]. Ayodhya Case [4372] [Agarwal J]. Ayodhya Case [4387] [Agarwal J].

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existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists’. However, the Court was careful not to base its decision on mere conjectures and surmises. According to the Court, the real issue was ‘whether the place in dispute according to the belief, faith and tradition of Hindus is the site where Lord Ram was born’.35 For such determination, ‘mathematical calculation’ was not needed; rather, the Court had to rely on the ‘preponderance of probability’.36 11.20 In order to prove that it was the Hindu faith and belief that the disputed place was the birth place of Lord Ram, the following were presented before the Court: …533 exhibits; 87 witnesses deposed in about 13990 pages; more than a thousand reference books on various subjects like History, Culture, Archaeology, Religion etc. and in different languages like Sanskrit, Hindi, Urdu, Persian, Turkish, French etc.; innumerable archaeological artifacts kept in the record room; dozens of C.Ds. and other record[s]; and, the period of events ranging from crores37 to more than 550 years; religious faith, sentiments and pathos of millions of people of not only this Country but abroad also…38

35

37 38 36

Whilst the Hindu parties claimed that the disputed site was worshiped as the birthplace of Lord Ram from time

Ayodhya Case [4374] [Agarwal J]. Ayodhya Case [4374] [Agarwal J]. A unit in the South Asian numbering system equal to 10 million. Ayodhya Case [1] [Agarwal J].

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immemorial, the Muslim side did not present any evidence contrary to that. Instead, they accepted and did not dispute that Lord Ram was born in Ayodhya. The only possible place, according to the Muslim side, was another temple on the north side of the disputed property, called Janamsthan temple. However, the Court rejected that suggestion immediately because the temple dated back to only about 200–300 years, ie, not before the 18th or 19th century.39 11.21 In order to rule out the Janamsthan temple possibility, the Court also relied on accounts of two foreign travellers who visited Ayodhya. In 1608–1611, one William Finch visited Ayodhya and referred to a place known as the fort of Ramchandra where Lord Ram was born. He also mentioned only one place as the birthplace of Lord Ram, which people visited for worship.40 Another foreign visitor was Joseph TIEFFENTHALER who visited Ayodhya in 1766–1771. He gave more detailed information about the disputed site. In his travelogue he mentioned that the people believe that Lord Ram was born here where a house which was demolished existed and thereafter building was constructed.41 11.22 The Court opined that, at a time when the territory was ruled by Muslims, if the Hindu people took the considerable risk of entering a mosque for worship believing it to be the place of birth of Lord Ram, ‘this faith, their determination and their attitude must have some basis and cannot be taken lightly’.42 The Court considered

39

41 42 40

Ayodhya Case [4374] [Agarwal J]. Ayodhya Case [4374] [Agarwal J]. Ayodhya Case [4376] [Agarwal J]. Ayodhya Case [4376] [Agarwal J].

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TIEFFENTHALER’s account and the customs, traditions and practice of Hindu people (i.e., the fact that Hindus had worshipped the disputed site as the birthplace of Lord Ram for at least five hundred years), and narrowed down the birthplace of Lord Ram to the disputed site. 11.23 In its reasoning, the Court considered that without any strong reason there was no need for Hindus to continue to demonstrate their faith by worshipping at the site in dispute particularly when, under Muslim rule, they could not have expected any support but only run the risk of life. 11.24 In the middle of the 19th century, a major confrontation occurred between Muslims and Hindus which was largely attributed to tension over the disputed site. This evidence brought the Court one step closer to its conclusion that the disputed site was the birthplace of Lord Ram because ‘if the disputed place was an ordinary place of worship for Muslims having no other history or antiquity attached with it’ then what could be the reason for such a frightful fight resulting into large causalities’.43 11.25 According to the Court, the fact that Hindus had insisted continuously for more than five hundred years that the disputed site was the birthplace of Lord Ram meant that there was something to their claim.44 In one document from 1858, Mohd. ASHGAR said that ‘in the inner courtyard, Hindus had been worshipping for several hundred years’, which the Court found an important corroborating fact to prove that the disputed site was the

43

Ayodhya Case [4390] [Agarwal J]. Ayodhya Case [4392] [Agarwal J].

44

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birthplace of Lord Ram.45 Even after the erection of the wall between the inner and outer courtyard of the disputed site, Hindus entered the inner courtyard and worshipped the place and images on the pillar at the entry point of the central dome of the Babri Masjid, believing that to be the birthplace of Lord Ram.46 In absence of any contrary evidence as to how worship was conducted in the past, the Court assumed that the current practice of worship had not changed.47 Government gazetteers and other records indicated that the disputed site was a very sacred and pious place. The Court continued with its reasoning and said ‘if the Hindu people worshipped a particular place believing it to be the place of birth of Lord Ram, in the absence of any location elsewhere, or existence of another place of birth at Ayodhya, we find no reason not to accept and uphold the said belief’.48 In conclusion, the Court, with reference to the disputed site, said ‘that for all practical purposes this is the place of birth of Lord Ram’.49 In particular, the Court held that the sanctum sanctorum that was ‘the place of birth as believed and worshipped by Hindus is the area covered under the central dome of the three domed structure, i.e., the disputed structure in the inner courtyard of the premises in dispute’.50

45

Ayodhya Case [4394] [Agarwal J]. Mohd. Asgar was Muttawali (caretaker) of the Babri Mosque who was made defendant in the suit filed in 1885 by Mahant Ragubar Das. In the suit, prayer was made to construct temple at the disputed site and to restrain the defendant Mohd. Ashgar interefering with the construction of the temple. See Ayodhya Case 9–12 [Khan J]. 46 Ayodhya Case [4400] [Agarwal J]. 47 ibid [4400] 48 Ayodhya Case [4401] [Agarwal J]. 49 Ayodhya Case [4407] [Agarwal J]. 50 Ayodhya Case [4418] [Agarwal J].

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11.26 According to Hindus, a place of worship may be deemed a deity itself with or without idols. Many places in India like Gangotri, Yamunotri, Gaya, Kedarnath, and Amarnath are considered places of worship. Since time immemorial, Hindus have worshipped the birthplace of Lord Ram and have held it in great esteem and reverence. According to their faith, the birthplace of Lord Ram is a deity and therefore the [disputed] property vests in idol as juristic person.51

(4) The Dilemma of Courts in Dealing with Faith and Belief 11.27 From the start of the case, the judges were very careful and mindful of the delicate situation they were dealing with. The Court said, ‘The issues are complicated with a wide canvass and also sensitive involving highly versatile sentiments and religious pathos of two major communities of present India.’52 One judge stated, ‘Here is a small piece of land (1,500 square yards) where angels fear to tread. It is full of innumerable landmines. We are required to clear it. Some very sane elements advised us not to attempt that. We do not propose to rush in like fools lest we are blown.’53 The judge who wrote the most lengthy judgment (Justice Agarwal) remarked that ‘considering the sensitivity of the matter, the issues had to be analyzed delicately, like a surgeon's hand, so as to reach a just decision which may cause harmony amongst the two major communities

51

Ayodhya Case 182 [Sharma J]. Idol is an juristic person which can own property under indian law. 52 Ayodhya Case [3508] [Agarwal J]. 53 Ayodhya Case 1 [Khan J].

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virtually covering the entire country’.54 Nevertheless, judges in this case took a risk and decided to move ahead ‘for national integration, peace and tranquility’ in India.55 11.28 At the same time, the Court also cast doubt from the outset as to whether some of the issues, related to religious faith in respect to the birthplace of Lord Ram, could fall within ‘the scope of judicial review in a Court of Law’.56 The Hindu parties asserted that the cemented faith and belief of the community may not be tested by a court of law and that such faith and belief, emanating from ancient literature, should be accepted ‘on its face without any tinkering and the matter deserves to be decided accordingly’.57 The Court realised that ‘in a battle simply of religious historicity’, the Court has to face all odds to ponder over such a controversy’.58 Although the Court announced that it would proceed with care ‘to scrutinise the rival claims to find out the truth objectively, dispassionately and without being influenced by any other factor except the truth and justice’, the Court raised an important and interesting issue in the middle of the case concerning the competence or relevance of courts while dealing with issues of religious faith and belief in India.59 11.29 The Court was caught between two approaches advanced by the parties. The Hindu side was relying on ancient Indian culture which survived for such a long time due to the approach, thoughts, and beliefs practised by Hindus.

54

56 57 58 59 55

Ayodhya Case 3511 [Agarwal J]. ibid [3511]. Ayodhya Case 3508 [Agarwal J]. Ayodhya Case 3511 [Agarwal J]. Ayodhya Case 3511 [Agarwal J]. Ayodhya Case 3508 [Agarwal J].

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The Muslim side on the other hand, demanded direct and positive evidence that the disputed site was the birthplace of Lord Ram. In a court of law, evidence is important in deciding any case. The court system and the laws of evidence in India were inherited from the British system during the British rule. However, before the establishment of the court system, people in India had their own traditions, customs, faith, beliefs, and religious concepts, some of which had been in existence for hundreds or thousands of years. The Court lamented that just because the Ayodhya case is refrred to the Court; it must decide the case on the basis of evidence and not otherwise as per sytem inherited from the British culture. The court further opined that the issues of faiths and beliefs should not depend on so-called evidence and cannot be shaken for want of evidence in the court of law.60 Therefore, if any religious faith and belief exist which are inherited and practiced since time immemorial, the Court should adopt it; it should not sit in judgment of the rationality or existence of the faith or belief claimed.61 11.30 The Ayodhya case has been appealed and the Supreme Court may face the same situation as the lower court.62 So far, however, the Allahabad High Court’s decision brought peace and tranquility in India on this issue, at least for the time being. Nevertheless, the judgment was criticised on the basis of law, facts and rules of evidence. The Supreme Court in Ismail Faruqui directed the Allahabad High Court to decide on the title of the disputed site, but the Allahabad

60

Ayodhya Case 4382 [Agarwal J]. Jamshedji Cursetjee Tarachand v Soonabai [1907], 1 Ind. Cases 834 [166–171]; ILR [1909] 33 Bom. 122. 62 The Supreme Court has admitted three petitions against the decision of the Allahabad High Court. 61

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High Court changed the title suit into a partition suit and divided the property between the Hindu side and the Muslim side.63 The judgment may be criticised on the basis of law but for all practical purposes, it achieved its objective of ending religious violence to maintain unity in India; despite fears of violence, after the delivery of judgment no communal riots, fights or killings happened.64

(5) Conclusion 11.31 Ayodhya issue is a political issue which the government passed to the Supreme Court for determination in Ismail Faruqui case. The Supreme Court then passed the buck to the Allahabad High Court in the Ayodhya Case. The High Court showed its constraints in deciding the issue of faith and belief, which is in practice for thousand of years, based on law and evidence, as it applys in other cases. Nevertheless, the High Court delivered its judgement in the interest of national unity and integrity and gave remedies, which was never pleaded by the parties. Now the case has again reached the Supreme Court by way of appeal. The Supreme Court has found the decision of the High Court ‘strange’ and considered that the decision has created a ‘litany of litigation’.65 It is highly likely that the Supreme Court may

63

While admitting appeals, the Supreme Court has dubbed the verdict of Allahabad High Court ‘strange’ as no party sought partition of the disputed site and therefore the Court stayed the decision of the High Court until the appeal is decided. Supreme Court Stays Allahabad High Court Verdict on Ayodhya, The Hindu, accessed 19 August 2013. 64 Ayodhya Case 3511 [Agarwal J]. 65 Supreme Court Stays Allahabad High Court Verdict on Ayodhya, The Hindu, accessed 19 August 2013.

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revert the case back to the High Court on technical grounds. Hence the issue will keep on going back and forth between the two courts without any real decision. 11.32 The matter of fact is that the issue of birthplace of Lord Ram cannot be decided in any court. The best way to decide this issue might be through mediation between the parties. So far parties have refused mediation. However, from time to time, attempts are made to mediate this dispute but without any success so far.66 A recent call for mediation was also made three years after the handing down of the judgement by the High Court but very soon that move also died down.67 It is submitted that the solution of this dispute lies in mediation only and cannot be determined by courts in accordance with law. 11.33 If the Ayodhya issue is decided by courts then the rule of law cannot be upheld because no legal principles, rules

66

‘Ayodhya: 'Muslims ready for out-of-court settlement', Rediff News, accessed 19 August 2013, ‘Katiyar, AIMPLB's hardline stance frustrates amicable settlement in Ayodhya’,Rediff News accessed 19 August 2013, ‘Ayodhya title suit: Nirmohi Akhara wants Kalam, Deoband, Shri Shri Ravi Shankar to mediate’, Rediff News, accessed 19 August 2013, ‘3 main parties to Ayodhya suit discuss formula to settle dispute’ accessed 19 August 2013. 67 Mulayam offers to mediate on Ayodhya, Deccan Herald, accessed 18 August 2013; Mulayam Singh Yadav will not mediate in Ayodhya dispute, Zafaryab Jilani says, The Times of India < http://articles.timesofindia. indiatimes.com/2013-08-19/india/41424745_1_vhp-delegation-nirmohiakhara-ram-temple> accessed 19 August 2013.

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or legal authorities can be applied correctly to reach the conclusion that the disputed site is the birthplace of Lord Ram. In the court, the claim must be proven on the basis of evidence and there cannot be any admissible evidence in support of that claim as rightly argued by the muslim parties in the appeal.68 If the court decides this issue based only on faith and belief of Hindus, without any supporting evidence, as it is done by the High Court, then it will violate the rule of law. It is important to note that courts have to act secular in deciding issues of religious faith and belief in order to guarantee the protection of Articles 25 and 26 of the Indian Constitution. Therefore if the Supreme Court ultimately decides the Ayodhya issue then it will indirectly undermine the rule of law which has been the corner stone of Indian legal system. In order to protect the rule of law, courts including the Supreme Court should be kept away from deciding the political issue of the birthplace of Lord Ram. As Justice Bharucha said, ‘Ayodhya is a storm that will pass. The dignity and honour of the Supreme Court cannot be compromised because of it’.69 The same is true for any court dealing with the Ayodhya issue in order to uphold rule of law. This does not mean that any other issues of religious faith and belief cannot be decided competently by the courts. Nor does it suggest that decisions based on religious faith and belief shall violate the rule of law. In fact, Indian courts have decided issues of religious faith and belief in other cases wihout compromising rule of law. It is the issue of the birthplace of Lord Ram which cannot be decided without compromising

68

Supreme Court Stays Allahabad High Court Verdict on Ayodhya, The Hindu, 9 May 2011 accessed on 19 August 2013. 69 Ismail Faruqui v Union of India [1995] 605 (SC) [152] [Bharucha J].

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the honor of courts or the rule of law. Therefore, parties should find the solution of this issue out-of-the-court and not by the court and thus the rule of law would be left intact in Indian legal system.

D

C

Annex: The Map produced in the court (Exihibit A-22O.O.S.1/89).

A B C D E is in possession of Hindoos W E F G H A is in possession of Mohammdans

Chabootra

B

A

W

Musjid

E

Sita Chula 11_The Rule of Law.indd 237

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Legislative Reversals of Judicial Decisions Shimon SHETREET1

(1) Introduction 12.01 It is a pleasure and honour to take part in this volume in honour of a deeply respected academic scholar and highly distinguished colleague and dear friend, Anton COORAY. 12.02 The principle of judicial independence is central to a legal culture of democracy, liberty and human rights. In recent years the notion of judicial independence extends beyond a principle or a concept, and is viewed as a culture encompassing formal elements, regulated expressly in law and constitutional amendments, as well as informal elements, governed by conventions, customs, practices, and social and political climate.2 12.03 Sometimes the informal elements are no less important than the written law elements of the culture of judicial independence. I fully agree with Lorne NEUDORF’s review in Modern Law Review3 of the volume that

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Greenblatt Professor of International and Public Law, Hebrew University of Jerusalem. E-mail: [email protected]. Shimon Shetreet, ‘Creating a Culture of Judicial Independence: The Practical Challenge and the Conceptual and Constitutional Infrastructure’ in Shimon Shetreet and Christopher Forsyth (eds), The Culture of Judicial Independence: Conceptual Foundations and Practical Challenges (Martinus Nijhoff Publishers 2012) 17–68. Lorne Neudorf, untitled book review of Shetreet and Forsyth (n 2), (2013) 76(1) Modern Law Review 181–184.

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Professor Christopher FORSYTH and I edited, Culture of Judicial Independence (2012),4 that informal elements of the culture of judicial independence are of great importance. It is to be noted that the main focus of my analysis of the culture of judicial independence in the above mentioned volume examined the formal elements. But I wish to take this opportunity to emphasise the equal importance of the informal unwritten elements of the culture of judicial independence. In fact, the six Shetreet principles which I advanced and have advocated on the constitutional protection of judicial independence mostly deal with generally unwritten principles.5 I have analysed these six principles of constitutional protection of judicial independence elsewhere and will only briefly summarise them here.6 The first principle of constitutional protection of judicial independence is a rule against ad hoc tribunals. The second is a prohibition against intentionally stripping courts of their jurisdiction and diverting cases to other tribunals with a view to having those cases disposed of by tribunals that do not enjoy the same conditions of independence as the original courts. The third is the standard-judge principle, or the ordinary-judge principle, which requires that judges be selected to hear cases by a predetermined internal plan or assignment schedule prior to the commencement of the case. The fourth principle requires post-decisional independence of the judgment and its respect by the other branches of the government. The fifth principle is that judges must not be part of

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Shetreet and Forsyth (n 2). Shimon Shetreet, ‘The Normative Cycle of Shaping Judicial Independence in Domestic and International Law: The Mutual Impact of National and International Jurisprudence and Contemporary Practical and Conceptual Challenges’ (2009) 10 Chicago Journal of International Law 275–332. ibid 289–293.

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the administrative arm of the executive branch; rather, they should be viewed as independent constitutional or statutory officers of the state, completely separate from the civil service. The sixth principle is that changes in the terms of judicial office should not be applied to present judges unless such changes serve to improve the terms of judicial service. 12.04 In this chapter I wish to analyse one of the important elements of the culture of judicial independence — that is, the duty to exercise mutual respect between the branches of government. In particular, this chapter is aimed at dealing with the self-limitations and the proper limits that should apply to the legislative and executive branches in their attitude towards pending cases, judicial proceedings and towards judicial decisions after they are handed down. 12.05 The first part of the chapter will analyse the conceptual framework of the issue, presenting the doctrine of separation of powers and the principle of post-judgment independence. Then the discussion will examine cases of intervention by the legislature of decisions delivered by the courts in a number of jurisdictions. This will be followed by an analysis of permissible or objectionable legislative responses to judicial decisions. 12.06 The last part of the chapter will deal with the specific issue of judicial review of unconstitutionality of constitutional amendments. This includes the power of normally top courts to examine whether the formal and procedural requirements for constitutional amendments have been met, and also the substantive review of unconstitutionality of the contents of constitutional amendments. In this review, the top courts rule whether the provisions of the constitutional amendments are consistent with the constitution.

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(2) Conceptual Analysis of the Independence of the Judicial Process 12.07 The culture of judicial independence cannot exist in just any governmental climate. It must exist in a system that is based on separation of powers. 12.08 Separation of powers in its classical form was developed by MONTESQUIEU, based on the English system of government in the 18th century.7 The doctrine of separation of powers requires a total separation between the three branches of the government: judicial, legislative and executive. Of course, total separation is a utopian ideal that cannot really be enforced in any system of government.8 12.09 Separation of powers remains a powerful principle in use today. This principle has been expressed in modern times by the American concept of ‘checks and balances’, where power is divided between the different branches of government. Unlike the classical theory, however, these powers are subjected to checks and balances of the other branches of government. 12.10 It is important to note a significant reform in the UK judicial system. Before the Constitutional Reform Act 2005, the Lord Chancellor was entrusted with three important roles: speaker of the Upper House of Parliament, the House of Lords;9 member of the executive branch and member of the senior cabinet; and head of the judiciary. The Constitutional Reform Act 2005 established

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See Baron de Montesquieu, The Spirit of Laws (Thomas Nugent tr, Hafner 1949). Amnon Rubinstein, The Constitutional Law of the State of Israel (Hebrew, 3rd edn, Shoken 1990) 225–226. See Louis Blom-Cooper, Brice Dickson and Gavin Drewry (eds), The Judicial House of Lords: 1876–2009 (Oxford University Press 2009) chs 4, 5.

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new lines of demarcation between the Lord Chancellor and the judiciary, transferring all of the Lord Chancellor's judicial functions to the judiciary, and entrusting the Lord Chancellor solely with what is considered conceptually to be administrative and executive, and not judicial, matters. Thus, the Lord Chancellor became a representative of the executive branch, and not of both the executive and judicial. The Constitutional Reform Act 2005 laid down a number of other reforms aimed at providing constitutional safeguards protecting the position of the judiciary. This law established the Supreme Court of the United Kingdom, and passed on to it the jurisdiction of the Judicial Committee of the House of Lords. The law also introduced a major reform in the method of judicial appointments, and provides in Sections 3 and 4 that ministers and other holders of office who have responsibility in matters of the administration of justice, promote and enhance the principle of judicial independence.10 12.11 In 2007, the English judiciary had many concerns that arose in connection with the establishment of the Ministry of Justice. In 2008, the Lord Chief Justice and the Lord Chancellor announced a new partnership with respect to the operation of the Court Service. On matters for which responsibilities had been moved from government ministers to the judiciary, thought was given to how to ensure a measure of accountability consistent with the principles of judicial independence.11

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Kate Malleson, ‘Selecting Judges in the Era of Devolution and Human Rights’ in Andrew Le Sueur (ed), Building the UK’s New Supreme Court (Oxford University Press 2004); Malleson, ‘Promoting Diversity in the Judiciary: Reforming the Judicial Appointments Process’ in Philip Thomas (ed), Discriminating Lawyers (Cavendish Publishing 2000). 11 Jack Beatson, ‘Reforming an Unwritten Constitution’ (31st Blackstone Lecture, Pembroke College, Oxford, 16 May 2009) accessed 23 October 2010.

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12.12 The Constitutional Reform Act provides that the executive branch must uphold the continued independence of the judiciary. The new order sees the Lord Chief Justice as the head of the judiciary, representing the judiciary and bearing responsibility for disciplinary matters. In addition, the Ministry of Justice and the Secretary of State for Justice have executive responsibility for the administration of justice in civil and criminal matters, an arrangement that creates the potential for friction between the judiciary and the executive branch. The matter is covered by ‘the Concordat’, a Constitutional undertaking between the government and the judiciary, which sets out the agreements between the Lord Chancellor and the Lord Chief Justice on their new roles.12 12.13 The Mt. Scopus International Standards of Judicial Independence provide that retroactive (or, ex post facto) legislation is inappropriate.13 Nevertheless, in a number of situations legislative bodies do pass retroactive legislation in order to reverse decisions of supreme courts.14 12.14 Article 6 of the European Convention on Human Rights (ECHR) presents the basic principle that everyone has the right to be tried by an independent and impartial tribunal and has an established right to bring his case before an impartial and independent court of law, and that his case should be adjudicated by that court without intervention.15

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Neil Andrews, ‘Judicial Independence: The British Experience’ in Shetreet and Forsyth (n 2), ch 26. 13 Section 3.1 of the Mt. Scopus Standards of Judicial Independence states: ‘The Legislature shall not pass legislation which reverses specific court decisions’. 14 For Israeli cases of legislative reversals of judicial decisions, see Shimon Shetreet, Justice in Israel: A Study of the Israeli Judiciary (Martinus Nijhoff 1994). 15 Shimon Shetreet, ‘Judicial Independence and Accountability: Core Values in Liberal Democracies’ in H.P. Lee (ed), Judiciaries in Comparative Perspective (Cambridge University Press 2011).

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12.15 An injured citizen must have a clearly established right to bring his case to a court of law. Any action that pre-empts the judicial resolution of a case by a physical or normative act is inconsistent with judicial independence and with the rule of law. Likewise, once a party to a case is awarded a court judgment, he or she has an inalienable right for the execution of such judgment. Any action that frustrates the execution of such judgment should equally be held in violation of judicial independence and the rule of law.

(3) The Duty of the Executive to Respect the Post-Judgment Independence of the Courts 12.16 The fourth principle of the six Shetreet principles for the constitutional protection of judicial independence is, as mentioned above, the post-decisional independence of court judgments.16 This principle imposes upon the executive branch a duty to enforce the courts’ decisions, civil or criminal, and refrain from frustrating them by legal or physical actions or omissions. This principle also imposes on the holders of the power of pardon, a duty to avoid unrestrained exercise of that power. This principle also requires the legislature to refrain from retroactive reversals of specific judicial decisions. 12.17 The independence of the judiciary calls for a limitation on the part of other branches of government from interfering with the independence of the judiciary. If a police commissioner, for example, fails to execute court orders to evict squatters, as was the case in the Netherlands and in Germany, this must be viewed as a violation of the principle requiring the respect of the post-decisional

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Shetreet (n 5) ‘The Normative Cycle of Shaping Judicial Independence in Domestic and International Law’; para 3 of this chapter.

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independence of judicial decisions. The importance of this principle should not be underestimated. Even in countries where judicial independence is written into the constitution and strongly supported socially and politically, the enforcement of judicial decisions, particularly sensitive ones, has given rise to difficulties. In the United States, President Jackson is recorded to have said during the middle of the 19th century, in reference to a Supreme Court ruling on state powers regarding Indian territories: ‘John MARSHALL made his decision; now let him enforce it’.17 Almost a century later, President EISENHOWER did not show the needed resoluteness in enforcing Brown v. Board of Education (1954).18 At first, he refused to send federal troops to enforce the decision; only in 1957 did he send federal troops to Little Rock.19 In the same way, Israel’s cabinet was as well somewhat slow in enforcing a Supreme Court decision in 1979 invalidating a settlement in the West Bank.20 12.18 Another phenomenon is the pre-emption of the enforcement of judicial decisions by actions of the executive branch. Judicial independence of the decision continues after the case is decided. Judicial independence requires the executive branch to respect the decisions of

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Alfred J. Beveridge, The Life of John Marshall, Vol. 4 (Houghton Mifflin 1919) 551, as quoted in Henry J. Abraham, The Judicial Process: An Introductory Analysis of the Courts of the United States, England, and France (3rd edn, Oxford University Press 1975) 338. 18 Brown v. Board of Education, 347 U.S. 483, 74 S. Ct. 689 (1954). 19 Lawrence Baum, The Supreme Court (Congressional Quarterly1981) 207-08. For the decision, see Brown v. Board of Education, 347 U.S. 483, 74 S. Ct. 689 (1954). Many states attempted by legislation and other measures to avoid the decision or circumvent it. See G. Theodore Mitau, Decade of Decision (Charles Scribner 1967) 63–64. 20 Shimon Shetreet, ‘Judicial Independence and Accountability in Israel’ (1984) 33 Int. Comp. L.Q. 982.

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the courts and not use its powers in a way that will preempt the enforcement of a judgment that has been handed down by the courts. Pre-emptive measures that frustrate the enforcement of a judgment are a violation of the rule of law and of the doctrine of separation of powers, and are also a violation of the principle of finality of judgments. In general, most jurisdictions do not engage in pre-emptive actions that frustrate judicial decisions, but there have been cases in a number of jurisdictions and those cases should be avoided. 12.19 The post-decisional independence of court judgments imposes upon the executive branch a duty to enforce the courts’ decisions, civil or criminal, and refrain from frustrating them by legal or physical actions or omissions. This principle also requires the legislature to refrain from retroactive reversals of specific judicial decisions. The Mt. Scopus Standards of Judicial Independence imposes a duty on the state to provide adequate budgets for the proper execution of the judgments of the courts.21 12.20 In optimal conditions, judgments are executed expeditiously. However, in reality, in the absence of adequate budgets and resources, there is frequently a backlog in the execution of judgments.22 This failure to execute judgment is unintentional. One should recognise that there are practical limits for expeditious enforcement

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Section 15.1 of the Mt. Scopus Standards of Judicial Independence provides that: ‘States, parties and international organisations shall provide adequate resources, including facilities and levels of staffing, to enable courts and the judges to perform their functions effectively’. 22 See HCJ 309/62 Bank Hapoel Hamizrahi v. Head of the Execution Office 16(4) PD 2602, in which the Israeli Supreme Court refused to hand down a decree stating the police had to arrest a person, because it was convinced that due to lack of resources, the police would not be able to follow the decree.

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of judgments because of lack of resources. Failure to enforce judgments in such circumstances is improper, but it cannot be viewed as a violation of judicial independence. However, there are cases of selective enforcement, when the executive branch decides to enforce certain categories of cases or intentionally decides not to enforce judgments. In those situations, this executive action of selective enforcement or failure of enforcement should be viewed as a violation of judicial independence. 12.21 Executive intervention in judicial proceedings is effected generally by the exercise of executive powers. This could take place by way of ministers using their position to influence judicial proceedings. Such interventions prevent the court from independent and impartial adjudication. 12.22 Delegated legislation is another way in which the executive branch might intervene in judicial proceedings. This can be limited by a rule excluding delegated legislation from affecting specific cases pending before the court.23 In these cases, the delegated legislation is aimed at regulating the issue that lies at the centre of the dispute between the citizen and the administrative authority. When the delegated legislation regulates the matter in favour of the citizen, then it is acceptable, but if the delegated legislation is aimed at frustrating the judicial process and regulating the matter in the opposite direction, supporting the position of the executive branch, then it is unacceptable. Delegated legislation of the second category, which adopts the solution that is advocated by the executive branch, is inappropriate and violates judicial independence. It

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Note that such delegated legislation can apply to other parties who are not party to the case.

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is true that prohibiting such delegated legislation limits the legislative powers of the executive branch, but such a limitation is necessary for the protection of judicial independence. 12.23 It should be noted that the general approach, which excludes delegated legislation in pending matters before the court, does not mean that delegated legislation is totally excluded. It is only excluded from affecting the specific case pending before the court. Such delegated legislation can apply to other parties who are not party to the case. 12.24 The rule that limits the effect of delegated legislation on matters pending before the court should be lifted in situations in which litigation was initiated by the citizen in bad faith. This is a situation where the petitioner knows that the executive branch is going to introduce delegated legislation that would negatively affecting his case and nevertheless goes to court. It is not proper that, by filing a petition to the court, such citizen can avoid the effect of delegated legislation. It must be shown that the petitioner intended to limit the freedom and the discretion of the executive branch. Normally, the Executive should not legislate in such pending matters. 12.25 Another form of executive intervention in judicial adjudication is by pre-emption of a decision. The court’s jurisdiction is limited to cases that are brought before it and its effectiveness is limited to situations where its decision is actually enforceable. An executive pre-empting action frustrates the adjudication. 12.26 An important element of judicial independence vis à vis the executive branch is the duty to refrain from actions that frustrate judicial remedies. In other words, the executive

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branch may not engage in pre-emptive frustrations of judicial remedies by parties to a case, such as deporting a petitioner who files a legal challenge to his deportation before the case is adjudicated.24 12.27 The duty of the executive branch to execute judgments can be seen in international standards. For example, the New Delhi Code of Minimum Standards of Judicial Independence (7, 17, 18) and the Montreal Declaration (Articles 2.07, 2.08) make express reference to this duty, both in its negative and positive aspects.25

(4) The Practice of Legislative Reversals of Judicial Decisions 12.28 The issue of legislative interference with judicial decisions is more complex than that of executive interference, as the legislature is charged with the function of amending the law in accordance with its perception of the public interest. The legislature has a perfectly legitimate power to amend the law and, if it so wishes, to reverse the law pronounced by the courts, provided the amendment is not applied to a specific decision. So long as the legislative reversal of judicial decisions is applied prospectively, no

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Such an unacceptable case took place in the Robert Soblen case and in the case of Dr. Natche. For the details on the issue in Israel, see SHIMON SHETREET AND JULES DECHÊNES, JUDICIAL INDEPENDENCE: THE CONTEMPORARY DEBATE 166 (Kluwer Academic Publishers 1985); Paul O'Higgins, Disguised Extradition: The Soblen Case, 27(5) THE MODERN LAW REVIEW 521 (1964); Secretary of State for the Home Department, Ex parte Soblen [1962] 3 All ER 373. see L. Blom-Cooper and G. Drewry, Final Appeal: A Study of the House of Lords in Its Judicial Capacity, 368-73 (1982); Shimon Shetreet Judges on Trial, at 45 and 347, note 84 (1976); Note, the Burma Oil Affair, 79 Harv. L. Rev. 614, at 633–34 (1966). 25 Shetreet and Forsyth (n 2) for the Standards and Declaration.

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problem arises.26 However, if it is applied retrospectively, to a specific case, then it is objectionable. Such retrospective reversal means that the legislature has turned itself into a court and resolved the dispute by legislation. This is, then, an interference with the judicial process in a particular case.27 12.29 The rule against retroactive reversal of a specific judicial decision is recognised by international standards and is laid down, for example, by the Montreal Declaration (Article 2.08) and by the New Delhi Code of the Minimum Standards of Judicial Independence (5, 19).28 12.30 Historically, the passing of retroactive legislation reversing specific judicial decisions is a widespread phenomenon. This practice is reported in many countries, including the United Kingdom, Israel, Canada, the Netherlands, India, Australia, and Bangladesh. Retroactive legislation reversing specific judicial decisions was passed to reinstate the scope of state immunity for war damages (United Kingdom), to render ineffective judicial decisions regarding land acquisition (Bangladesh), to reinstate the wide scope of executive privilege in not disclosing privileged evidence without being subject to judicial scrutiny (Australia), to reinstate the executive power to promulgate emergency

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Bradley Scott Shannon, The Retroactive and Prospective Application of Judicial Decisions ,26( 3) Harvard Journal of Law & Public Policy 812 2003 and see Linkletter v. Walker 381 US 618 (1965). 27 This objectionable course was taken in India in the Indira Ghandi Election case. Just one day after a stay petition had been issued by the Supreme Court of India, an emergency was declared and before the election appeal was finally heard, a series of constitutional amendments were passed in a desperate attempt to pre-empt a judicial resolution on the validity of the election and remove the risk of their invalidation by the Court. For the details of the issue in India, see Shetreet and Dechênes (n 29) 152. 28 See Shetreet and Forsyth (n 2) for the Standards.

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regulations without publication (Israel), and to authorise the government to send troops to UN peace-keeping forces in Lebanon (the Netherlands). As can be seen from the background of these cases, the legislature resorts to retroactive reversal of judicial decisions at the instigation of the executive, in order to avoid the results of the judicial decisions, which in most cases were against the executive.

(5) The Academic Discourse on Legislative Reversals of Judicial Decisions: Distinguishing between Judgments Correcting Errors of Law and Judicial Precedents Establishing Innovative Principles of Law 12.31 There are two main functions of top courts and appellate courts. The first is to correct errors of law and the second is to pronounce new general legal rulings. There is no doubt whatsoever in the legitimacy of legislative power to reverse judicial decisions and apply the amended law prospectively in both situations (correcting judgments in cases of error and judicial pronouncement of new legal norms). However, it is an open question whether the legislature can legitimately apply the legislative reversal of a judicial decision retroactively to the specific case heard and decided by the court.29 12.32 Retroactive legislation is a sensitive matter and many countries have no record of such acts.30 In others, such

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ibid. Austria; Brazil; Finland; France; Ghana; Malta; Norway; Spain; Sweden; Uganda; United States; Belgium; West Germany; Japan. In Austria, such legislation is theoretically possible but has in practice, never been enacted. For detailed analysis for these countries, please see chapters 2–30 in Shetreet and Dechênes (n 29) 8–380.

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legislation has been known only in isolated cases,31 although in a fair number of countries sometimes with unstable political histories, this phenomenon is, or was, more common,32 and in a number of states little concern is shown at such legislation.33 Criticism elsewhere is strong, regardless of whether the phenomenon is one with which the given state is familiar or not.34

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Eg, Australia; United Kingdom. In the latter, the ‘celebrated’ reversal of the Burma Oil case, seen by many as a breach of the rule of law, is commonly cited. Burma Oil v. Ltd. Advocate (1965) AC 57 and the subsequent War Damage Act 1965. 32 Greece; Italy; Netherland; Nigeria; Portugal; South Africa; Uraguay. This was a feature of the dictatorship of the mid-1970s in Greece. In Nigeria, the unreported case of Lakanurni & others v. Att. General (West) & others, S.C. 58/57 CAW 35/68, and the subsequent Federal Military Government (Supremacy & Enforcement of Power) Decree 1970 is a noteworthy example. In Portugal, there seems to be dichotomy of opinion between members of the profession and academics as to whether such legislation exists. A second judgment subsequent to the offending Act, declaring it prospective in effect only, has occurred more than once in South Africa, and for a courageous judiciary is surely a good solution to the problem. Such legislation is quite legal in Uruguay though it is by no means universally supported. 33 Brazil; Italy; Netherland; Malta. This despite its quite common use in Italy and the wide use of retroactive legislation in Netherlands in tax cases and in the recent overruling of a court decision, which in turn had invalidated a government decision to send troops with the United Nations to Lebanon. 34 Australia; Greece; Belgium; Finland; Nigeria; Portugal; Uruguay (has a provision allowing retroactive legislation, but much criticism is levelled at this); United Kingdom; Finland; Belgium (criticise the idea, though the phenomenon is largely unknown). In Greece, the criticism is based on the previous experiences; such legislation is not enacted at present. Australia has an example of retroactive legislation that was widely supported despite a general antipathy to the concept. Sankey v Whitlam (1975) 53 ALJR 11, a decision that crown privilege is to be decided by the courts was reversed. In the United Kingdom, the level of criticism can be gauged by reading any of the large body of academic works concerning the Burma Oil Company case (For comments on this see Paul Jackson, War Damage Act, 1965, 28(5) THE MODERN LAW REVIEW 574 (1965))

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(6) Illustrations of Legislative Reversals of Judicial Decisions 12.33 Legislative reversal of judgments of the court exists in established democracies such as Canada (injunction on nuisance case),35 England (the state immunity in times of war),36 and India (Muslim divorced women case).37 12.34 Canada: The McKie Case. An illustration of the issue of legislative responses to judicial decisions is reflected in the Canadian case K.V.P. Co. Ltd. v. McKie (1949). In McKie, owners of property along the Spanish River in Ontario sued the operator of an upstream pulp and paper mill for pollution of the river’s waters. The court ordered an injunction restraining the K.V.P. Company, the defendant, from depositing foreign substances in the Spanish River. The company appealed, the appeal was dismissed, and the case was then appealed to the Supreme Court of Canada. The Lakes and Rivers Improvement Act was amended, altering the situation of the K.V.P. Company. However, despite the amendment, the company’s appeal was dismissed, with the Supreme Court holding that the amended act would not enable the Court to give a judgment that was contrary to law at the time of the Court of Appeal decision.38 In response, retrospective legislation was passed: the K. V. P. Limited Act. Section I of the Act read: ‘Every injunction heretofore granted against the K. V. P. Limited ... restraining the Company from polluting the waters of the Spanish River, is dissolved’.39

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K.V.P. Co. v. McKie, [1949] S.C.J. No. 37. See also Shimon Shetreet, ‘Judicial Independence: New Conceptual Dimension’ in Shetreet and Dechênes (n 29) 610–623. 36 Burmah Oil Co (Burma Trading) Ltd v Lord Advocate [1965] AC 75, [1964] 2 All ER 348 was reversed by the War Damage Act 1965 (1965 c 18). 37 Mohd. Ahmed Khan v. Shah Bano 1985 SCR (3) 844. 38 K.V.P. Co. Ltd. v. McKie et al., [1949] S.C.R. 698. 39 Ernest J. Weinrib, Tort Law: Cases and Materials (Emond Montgomery Publications 2009) 40–41. For the Ontario Act, see also K.V.P. Company Ltd. Act 1950, S.O. c. 33.

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12.35 UK: The Burma Oil Case. Another case, crucial for British constitutional law, is Burmah Oil Company v Lord Advocate. The case arose out of the destruction of oil fields in Burma by British forces in 1942 in order to prevent the installations from falling into Japanese hands. The appellants claimed that they were entitled to payment of a sum amounting to the amount of damages sustained by them due to the destruction. Although it was admitted that the demolitions were carried out lawfully, it was argued that every act of requisition done for the good of the public should be compensated. 12.36 The legislature reacted and passed the retrospective War Damage Act 1965, which abolished rights to compensation with respect to destruction of property authorised by the Crown during the war. This Act had the effect of reversing the court’s judgment and thus undermining judicial independence. 12.37 In addition to the War Damages Act there have been other later cases of doubtful legislative and executive actions in the UK intervening in relation to judicial decisions. In R v Home Secretary ex p Fire Brigades Union40 the Criminal Injuries Compensation Scheme was altered using Royal Prerogative instead of pending statutory power. This was held unlawful by the court. In another case the Home Office deported M, claiming a misunderstanding, despite a court injunction M v Home Office.41 Following Council of Civil Service Unions v Minister for the Civil Service42 the government banned trade union membership at a listening

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R v Secretary of State for the Home Department, ex parte Fire Brigades Union [1995] 1 All ER 888. 41 M v Home Office [1994] 1 AC 377. 42 Council of Civil Service Unions v Minister for the Civil Service [1984] 3 All ER 935.

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station. In Congreve v Home Office43 the Home Secretary tried to prevent purchase of TV licenses to restrain the rise in cost of the licenses. 12.38 India: The Shah Bano Case. The issue of legislative reversal of judicial decisions arose in connection with the controversy in India on the implementation of a uniform civil code, which is provided in the Constitution of India in Article 44. The main field in which this was problematic, and the one in which most controversies have arisen, is family law. A uniform civil code would apply, by definition, to all areas of civil life, including those currently covered by personal law. Thus, the uniform civil code authorised by the Constitution would create law pertaining to marriage and divorce, inheritance, personal status, and so on. The problem was that Muslims are subject to Shari’a law, which conflicted with India’s civil code in some areas. 12.39 The Shah Bano case held that a divorced Muslim wife is entitled to apply for maintenance under section 125 of the Code of Criminal Procedure.44 Many Muslims were outraged by the Supreme Court’s ruling and saw it as an attempt to force upon them a uniform code of secular nature. Very soon after the decision of the Supreme Court, the Muslim Women (Protection of Rights on Divorce) Act 1986 was passed,45 which overturned the Shah Bano ruling, thus reinstating Muslim personal law as previously understood.

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Congreve v Secretary of State for the Home Office [1976] 1 All ER 697. Mohd. Ahmed Khan v. Shah Bano Begum & Ors, (1985) 3 S.C.R. (India) 844. 45 The Muslim Women (Protection of Rights on Divorce) Act, No. 25 of 1986. 44

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12.40 The provisions of Article 44 of India’s Constitution are not reviewable by any court. To some, it may seem odd to completely remove an entire section of a nation’s highest law from the nation’s highest court’s review. Article 44’s language directs the state to ‘endeavour’ to secure for the citizens a uniform civil code, and though the court may not pass judgment on the actual application of a uniform civil code, it seems that it is entirely within its authority to review the seriousness of the state in endeavouring to secure a uniform civil code. 12.41 There are several possible approaches to how a uniform code should be secured. Justice Singh’s opinion in Sarla Mudgal46 states that the fact that a codified law already applies to a vast majority of the people of India is a signal that the Indian people are ready for a uniform code, and that this law should be applied to all Indian people. 12.42 Another approach, also found in Sarla Mudgal, is represented by Justice Sahai.47 His reasoning is that when the different communities are ready, and reform their laws appropriately, only then can a uniform civil code be secured. However, if the different groups composing Indian society are left completely to their own devices, there will be no reason for them to change in a direction agreeable with the Constitution of India — one that will allow for the implementation of a uniform civil code. Change from within requires an external force to drive it in the right direction — the direction put forth in the Constitution of India — so it is unlikely that appropriate change will come of its own accord. The aftermath of Shah Bano shows that change not only does not come without

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Sarla Mudgal v. Union of India, A.I.R. 1995 S.C. 1531 (India). ibid (Sahai, J).

47

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external pressure; Moreover, without it the ‘old ways’ can become more permanent. 12.43 Different personal laws can be passed for different religions, but these personal laws would have to comply with the principles set forth in the uniform civil code. This approach, however, would not have much effect. The state of affairs today is that these uniform principles are in existence in the Constitution, and the introduction of legislation for different religions is one that could be made today.48 12.44 Professor Hiram CHODOSH and I suggested that Indian society meet the challenge of implementing uniform civil code for India under the following guidelines: (a) use the legislative process rather than judicial resolution, (b) introduce a uniform civil code but retain religious law as parallel law systems, (c) gradually implement the uniform civil code, and (d) formulate the uniform code through intercommunity mediation and individual mediation.49 12.45 How Should We Judge Retrospective Application of Legislative Reversals of Judicial Decisions Applying to

48

See The Hindu Adoption and Maintenance Act, No. 78 of 1956; The Hindu Minority and Guardianship Act, No. 32 of 1956; The Hindu Succession Act, No. 30 of 1956; The Hindu Marriage Act, No. 25 of 1955; Mohd. Ahmed Khan v. Shah Bano Begum & Ors, (1985) 3 S.C.R. (India) 844. On the implication of the Shah Bano case for national politics in India, see generally Veena Das, Critical Events: An Anthropological Perspective on Contemporary India (OUP India 1997); Marc Galanter and Jayanth Krishnan, ‘Personal Law Systems and Religious Conflict’ in Gerald James Larson (ed), Religion and Personal Law in Secular India: A Call to Judgment (Indiana University Press 2001) 272–275; Patricia Jeffery, ‘A Uniform Customary Code? Marital Breakdown and Women’s Economic Entitlements in Rural Bijnor’ (2001) 35 Contributions to Indian Sociology 1, 2–3; Purushottam Bilimoria, ‘Muslim Personal Law in India: Colonial Legacy and Current Debates’ (Law and Religion Program of Emory Law School) accessed Feb. 3, 2011. 49 Shimon Shetreet, ‘Academic Blueprint for the Implementation of Uniform Civil Code for India’ [2011] Utah Law Review 97–120.

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a Specific Decision? My own view is that in general, retrospective legislation should be viewed negatively and must be avoided. The very exceptional cases where retrospective legislation could be justified will be when a judgment of a court will invalidate a great number of governmental actions and reverse a decision according to which the government or the general public have relied on for a long time. In such cases, even though the law upon which the general public relied on may have been erroneous, it is not in the public interest to invalidate the great number of actions. Therefore, the courts should apply their decisions prospectively, as they have done from time to time. If the courts choose to apply the decisions prospectively, it will not cause a conflict between court decisions and retrospective legislation in such cases. In such a case the legislation will only reinstate the legal situation as it was before the judgment. 12.46 Retrospective legislation may be justified when the judiciary exceeds its role in a particular jurisdiction. In such a situation, the legislative branch may, or perhaps should, reinstate the balance between the two branches of the government that was in fact breached by the judiciary in that case. However, in most cases retrospective legislation is not consistent with the accepted restrictions on the legislative branch that exclude legislation which impacts judicial decisions.

(7) Reversal of Judicial Decisions by Ordinary Legislation and by Constitutional Amendments 12.47 When the legislature wishes to respond to a judicial decision by introducing legislation amending the law in the matter adjudicated, it must determine whether the matter was statutory or constitutional in nature. If it finds that it is the latter and it still wishes to respond to the court

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decision, this will require constitutional amendment. If the legislature finds that it is the former, ie the statutory level, there is no need for constitutional amendment, only legislative amendment. 12.48 There are a number of ways courts can review the unconstitutionality of a constitutional amendment. The first approach, which I will refer to as the ‘totalist’ approach, is that the court is authorised to review the unconstitutionality of constitutional amendments in all cases. According to this approach, if the court is authorised in a given jurisdiction to exercise judicial review of statutes, it can also review the constitutionality of constitutional amendments on both procedural and substantive grounds. This is so even when judicial review is only implied in the constitution, as in the U.S. or Israel, and not expressly provided.50 12.49 According to the totalist approach, the court has the power to review constitutionality in the same broad scope even when the constitution does not provide for so called ‘eternal clauses’ (legal provisions aiming to ensure that a constitutional law or sections of the constitutional law cannot be changed by subsequent amendments).51 The central principles of the constitution will be determined by the courts themselves.52

50

The totalist approach has been advanced by Retired President Aharon Barak of the Supreme Court of Israel. For analysis of the issue from a comparative perspective, see Aharon Barak, ‘Unconstitutional Constitutional Amendments’ (2011) 44 Israel Law Review 321 accessed 20 June 2013; Kemal Gözler, Judicial Review of Constitutional Amendments: A Comparative Study (Ekin Press 2008). 51 For discussion of eternal clauses and unconstitutional constitutional amendments, see the analysis from German and Norwegian perspectives in Eivind Smith, ‘Old and Protected? On the “Supra-Constitutional” Clause In the Constitution of Norway (2011) 44 Israel Law Review 369; and Ulrich K. Preuss, ‘The Implications Of “Eternity Clauses”: The German Experience’ (2011) 44 Israel Law Review 429. 52 Barak (n 50).

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12.50 According to the totalist view, there should be no difference between reviewing constitutional amendments on procedural grounds versus substantive grounds. There should also be no difference if the authority for judicial review is based on express power to review constitutional amendments and statutes or if the authority is only implied by the constitution as interpreted by the courts. In all cases, the court has the power to review the unconstitutionality of constitutional amendments. 12.51 Moreover, the totalist approach reads into the constitution basic ideas and fundamental principles that are defined as central to the system and that cannot be changed by constitutional amendment, only by replacement by a totally new constitution. 12.52 What principles are so central that they may not be amended by constitutional amendments, but only by a new constitution? Under the totalist approach, the answer is up to the court. 12.53 The second approach regarding the judicial power to review the constitutionality of a constitutional amendment is the moderately wide approach. This approach determines whether judicial jurisdiction exists for reviewing the constitutionality of constitutional amendments, by weighing the existence in the constitutional system of the following elements: express authority for judicial review of statutes, express authority to review both form and substance of constitutional amendments, and expressly provided eternal clauses. The absence of any one of these elements may mean the court has no authority to review the constitutionality of constitutional amendments. But if all of these elements exist in the jurisdiction, then the court does have that power. Constitutional amendments have been introduced that changed these elements, and in those jurisdictions, the

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review authority of the courts changed accordingly. This was the case in India, Turkey and Austria.53 12.54 The third approach is the restrained approach. According to the restrained approach, courts do not review the constitutionality of constitutional amendments even if all the elements listed above are present. Instead, the courts leave to the political process the function of supervising content and process, as in France54 and the US.55 12.55 Reversals of judicial decisions in the case of statutory provisions can be reviewed against constitutional provisions, and if found to be in violation of those provisions they can be declared unconstitutional. Otherwise they will be upheld in the restrained approach, even though such legislative reversals can be viewed as objectionable by scholarly or public scrutiny. Such were the cases of the War Damage Act in the U.K. or the K.V.P. Co. Act in Canada.

53

For Turkey, see Barak (n 50) 322-325; Yaniv Roznai and Serkan Yolcu, ‘An Unconstitutional Constitutional Amendment — The Turkish Perspective: A Comment on the Turkish Constitutional Court’s Headscarf Decision (2012) 10(1) Int J Constitutional Law 175–207; Gözler (n 50); Ergun Ozbudun, ‘Judicial Review of Constitutional Amendments in Turkey’ (2009) 15 European Public Law 533 (2009). For India, see Barak (n 50) 325–328. For Austria, see Barak (n 50) 327–328 . 54 The French top tribunal denied the application of review of constitutional amendments three times. See Denis Baranger, ‘The Language of Eternity: Judicial Review of the Amending Power in France (Or the Absence Thereof)’ (2001) 44 Israel Law Review 389. 55 Coleman v Miller, 307 US 433 (1939). For analysis and academic discourse, see Laurence H. Tribe, ‘The Constitution We Are Amending: In Defense of a Restrained Judicial Role’ (1983) 97 Harvard Law Review 433; Walter Dellinger, ‘The Legitimacy of Constitutional Change: Rethinking the Amendment Process, (1983) 97 Harvard Law Review 386; Jason Mazzone, ‘Unamendments’ (2005) 90 Iowa Law Review 1747; Jeff Rosen, ‘Was the Flag Burning Amendment Unconstitutional?’ (1991) 100 Yale Law Journal 1073; Raymond Ku, ‘Consensus of the Governed: The Legitimacy of Constitutional Change’ (1995) 64 Fordham Law Review 535; Barak (n 50) 329–331.

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12.56 However, if one follows the totalist approach or some form of the moderately wide approach, then it may be concluded that the principle of judicial independence, whether expressly provided or implied in the constitution, is a central element of the culture of democracy. Based on this analysis, it may be that, according to the totalist approach or the moderately wide approach, the courts in certain jurisdictions may decide that the legislative reversal of judicial decision, if held in violation of judicial independence, will be declared unconstitutional. This is so in case of an ordinary legislation or a constitutional amendment as was in one case in Turkey.56 12.57 If the legislative reversal is on the normative level of an ordinary legislation and it is applied prospectively and not retrospectively, it is doubtful that the legislature can be restricted from exercising its legitimate sovereign power of amending the legislation.

(8) Conclusion 12.58 I have analysed one of the important elements of the culture of judicial independence — that is, the duty to exercise mutual respect between the branches of government. In particular, the branches of government must exercise self-limitations and respect proper limits .In this regard the legislative and executive branches should be very cautious in their attitude towards pending cases,

56

The Constitutional Court of Turkey ruled that an Act to remove certain qualifications from those required to be military court judges violated judicial independence provided in Article 7 of the Constitution, which constitutes a component of the principle of the rule of law also provided in Article 2 of the Constitution, both of which form part of the unamendable constitutional foundations of the state. See, Gözler (n 50) 42, referring to the Decision of 15 April 1975, No. 1975/87, 13 AMKD 403 (1975).

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judicial proceedings and towards judicial decisions after they are handed down. 12.59 This approach is required by the accepted conceptual doctrine of separation of powers and the principle of postjudgment independence In fact, in spite of the limitations there have been cases of intervention by the legislature in decisions delivered by the courts in a number of jurisdictions. The chapter offered an analysis of permissible or objectionable legislative responses to judicial decisions. 12.60 In the last part of the chapter we dealt with the specific issue of judicial review of unconstitutionality of constitutional amendments. This includes the power of normally top courts to examine whether the formal and procedural requirements for constitutional amendments have been met, and also the substantive review of unconstitutionality of the contents of constitutional amendments. In this review, the top courts rule whether the provisions of the constitutional amendments are consistent with the constitution. The chapter reviewed the models on this issue and the chapter prefers the moderate approach.

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Implementation and Application of the 1980 Hague Abduction Convention Bea VERSCHRAEGEN1

(1) Introduction 13.01 It is a great pleasure to take part in this volume in honour of Professor Anton COORAY. Although we have only worked together for a short period of time mainly concerned the collaborative programmes between Vienna University School of Law and the City University of Hong Kong School of Law, I am very impressed by Anton’s remarkable energy and efficiency. 13.02 In this chapter, I hope to demonstrate that observing the rule of law remains fundamental in the implementation and application of international conventions, such as the 1980 Hague Abduction Convention. 13.03 The Convention on the Civil Aspects of International Child Abduction (the Abduction Convention)2 entered into force on 1 December 1983. The high number of Contracting Parties (CPs) demonstrates that they not only disapprove of child abduction for reasons of the best interests of the

1



2



Full Professor at the University of Vienna, Professor at Pan European University (Bratislava). For further information see homepage: http:// homepage.univie.ac.at/bea.verschraegen/. Convention on the Civil Aspects of International Child Abduction, 25 October 1980, 1343 UNTS 89, entered into force 1 December 1983 accessed 25 June 2013.

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child, but also because custody rights are disregarded and, hence, state interests are involved. The Abduction Convention only applies between Contracting States (CS). 13.04 The main objectives of the Abduction Convention are to secure the prompt return of a child wrongfully removed to or retained in a CS and to ensure that custody and access rights under the law of one CS are effectively respected in the other (Article 1(a) and (b)). 13.05 The removal or retention must be in breach of custody rights under the law of the CS in which the child has his or her habitual residence before his or her removal or retention. The Abduction Convention requires that at the time of removal or retention, those custody rights were actually exercised, or would have been so exercised if removal or retention had not taken place (Article 3(a) and (b)). The law of the CS includes judicial or administrative decisions, whether formally recognised or not, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions that would otherwise be applicable (Article 14). 13.06 The Abduction Convention applies to children until they have attained the age of 16 years (Article 4). The rights of custody (Article 5(a)) include rights relating to the care of the child, in particular to the right to determine the child’s place of residence. This broad definition may create problems, especially if — in the case of shared custody — the other parent has not established a real relationship with the child, or if authorities to some extent exercise custody rights (Article 3(a)). The situation may be aggravated when the right to determine the child’s place of residence is shared by both custodians and courts issue a non-removal clause. The rights of access (Article 5(b))

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include the right to take a child for a limited period of time to a place other than the child’s habitual residence. 13.07 Per Article 7, each CS must designate a Central Authority (CA) to discharge the duties imposed by the Abduction Convention. The CAs of the different States must cooperate expeditiously with each other and promote cooperation amongst the competent authorities in their State in order to secure the objectives of the Abduction Convention. It is their task to take all appropriate measures in various respects (listed as examples in Article 7(a)–(i)). 13.08 The CAs are authorised by the Abduction Convention to initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and to make arrangements for the effective exercise of rights of access (Article 7). CAs must reach a decision within six weeks from the date of commencement of proceedings. Lacking such a decision, a statement of the reasons for the delay may be requested by the applicant or the CA of the requesting State (Article 11). A decision under the Abduction Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue (Article 19). 13.09 If, at the date of the commencement of the proceedings, less than one year has elapsed from the wrongful removal or retention of the child, such return shall be ordered without further queries, whereas if more than one year has elapsed, the outcome will depend on whether the child is settled in its new environment (Article 12, paragraphs 1 and 2). The return of the child may be refused, if such return would be contrary to fundamental principles of the requested State relating to the protection of human rights

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and fundamental freedoms (Article 20; e.g., human dignity of a mature child refusing to return, if the child is ordered to return). 13.10 The child shall not be returned, if one of two objections to the return is established. Either (1) custody rights were not actually exercised at the time of removal or retention, the removal or retention had been consented to or subsequently acquiesced in (Article 13, paragraph 1(a)) or (2) there is a grave risk that the return of the child would expose him or her to physical or psychological harm or otherwise place the child in an intolerable situation (Article 13, paragraph 1(b)). Return of the child may be refused if the child objects to being returned and he or she has attained an age of maturity at which it is appropriate to take account of his or her views (Article 13, paragraph 2). Information relating to the social background of the child provided by the CA or other competent authority of the child’s habitual residence shall be taken into account (Article 13, paragraph 3).3 13.11 The requested State shall not decide on the merits of custody rights until it has been determined that the child will not be returned or unless an application is not lodged within a reasonable time following receipt of notice of wrongful removal or retention (Article 16). If a decision

3



Case law demonstrates that the interpretation of ‘grave risk’ differs from court to court and country to country. If in the country of origin the child would be exposed to a war, to famine or to an epidemic plague, the grave risk exception is fulfilled. But it would, in general, not suffice, if the child has to return to a major city known to be dangerous (e.g., Johannesburg), or to a country exposed to terrorist attacks (e.g., Ethiopia, India), or to a country exposed to natural disasters (e.g., Thailand, Japan). A grave risk for the person who removes or retains the child or from whom the child was removed or retained is not covered by the Convention. See Shier, in Münchener Kommentar zum BGB5 (2010) HEntfÜ No 75.

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on custody rights has been given by the requested State or if such a decision is entitled to be recognised, this shall not constitute grounds for the CA refusing to return the child; the requested State may take into account the reasons for such a decision (Article 17). 13.12 The effective exercise of access rights is extremely important and influences custody rights. An application to make arrangements with regard to access rights follows the same pattern as an application for the return of the child. The CAs are obliged to cooperate and shall take steps to remove, as far as possible, all obstacles to the exercise of access rights. They may initiate or assist with a view to organising or protecting such rights and securing respect for the conditions to which the exercise of accession rights may be subject (Article 21). 13.13 Among the general provisions of the Abduction Convention, Article 34 deserves attention. This provision states that the Abduction Convention has priority in matters within its scope of application over the 1961 Child Protection Convention,4 as between parties to both Conventions. In the meantime, the 1996 Child Protection Convention5 entered into force. Article 51 of the 1996 Child Protection Convention states that in relations

4



5



Convention concerning powers of authorities and the law applicable in respect of the protection of minors, 5 October 1961, 658 UNTS 143, entered into force 4 February 1969 (1961 Child Protection Convention) accessed 25 June 2013. Note that this Convention is applicable in Macau, but not in Hong Kong. Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, 19 October 1996, 2204 UNTS 39130, entered into force 1 January 2002 (1996 Child Protection Convention) accessed 25 June 2013. This Convention is not applicable in Macau nor in Hong Kong.

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between the CPs, it replaces the 1961 Child Protection Convention as well as the ‘Convention governing the guardianship of minors’, signed at The Hague on 12 June 1902, without prejudice to the recognition of measures taken under the 1961 Child Protection Convention.

(2) Interaction of Different Legal Sources 13.14 Under Austrian law, a variety of international legal treaties in the field of child protection must be observed: the Abduction Convention, the 1996 Child Protection Convention, the 1961 Child Protection Convention, and the 1980 Custody Convention.6 13.15 The European Union (EU) is charged with these matters to a growing extent as well. Article 60 of Brussels IIa7 deals with the legal interaction between it and, inter alia, the 1961 Child Protection Convention, the 1980 Custody Convention, and the Abduction Convention, and states that it shall take precedence over the conventions mentioned in relations between the EU Member States in so far as they concern matters governed by Brussels IIa. This means that Brussels IIa shall apply with regard to child abduction within EU Member States (except for Denmark). If any third State (a non-EU Member State) or Denmark ratifies the Abduction Convention, Brussels IIa shall also apply to child abduction into and from these

6



7



European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children, 20 May 1980, 1496 UNTS 37, entered into force 1 September 1983. Council Regulation (EC) No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (Brussels IIa) [2003] OJ L338/1.

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States (Article 60(e), Brussels IIa).8 Due to the precedence of Brussels IIa over the 1980 Custody Convention in relations between the EU Member States and insofar as issues are concerned that are governed by Brussels IIa,9 little room is left for the application of said Convention. In addition, Article 19 of the 1980 Custody Convention states that it shall not exclude the application of any other international instrument in force between the State of origin and the State addressed or any other law of the State addressed not derived from an international agreement for the purpose of obtaining recognition or enforcement of a decision. It is further provided in Article 20, paragraph 1 of this Convention that it shall not affect any obligations that a CS may have towards a non-CS under an international instrument dealing with matters governed by it. If a CS has enacted uniform law in relation to child custody or if it created or will create a special system of recognition or enforcement of custody decisions in the future, the CS shall be free to apply that law or system in place of the 1980 Custody Convention (Article 20, paragraph 2, sentence 1). Within its field of application, the Convention has priority over the 1996 Child Protection Convention10 and the 1961 Child Protection Convention11 as between CPs of both Conventions.

 8

For example, if a child with habitual residence in Fiji, Hong Kong or Macau is wrongfully removed to Austria, the Abduction Convention would apply. The European Convention on Human Rights (ECHR) would come into play, if — in this example — an Austrian public authority decided to return the child or to refuse such return. Conversely, if a child with habitual residence in Austria is wrongfully removed to Fiji, Hong Kong or Macau, the Abduction Convention would apply. If a public authority from Fiji, Hong Kong or Macau decided to return the child, the ECHR could not be invoked.  9 See Brussels IIa, art 60(d). 10 See 1996 Child Protection Convention, art 50, sentence 1. 11 See Abduction Convention, art 34, sentence 1.

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13.16 In matters of jurisdiction between the EU Member States, Brussels IIa applies, if the child is habitually resident in the EU.12

(3) Application of the Convention 13.17 Problems can arise upon the application of the Abduction Convention concerning the interpretation of key notions such as custody rights, grave risk, and the wrongful removal or retention. Further, ‘speedy procedure’ is not always as speedy as it ought to be. To a growing extent, it is recognised that a solution based on mutual consent by the parties involved is an advantage. 13.18 The broad definition of custody rights in Article 3, paragraph 1(a) of the Abduction Convention has been subject to a series of court decisions in the CS. In Abbott v Abbott, for example, a case decided on 17 May 2010, the US Supreme Court held that a parent has a right of custody under the Convention by reason of that parent’s ne exeat right.13 13.19 Mr. ABBOTT and Mrs. ABBOTT moved with their son to Chile and later on separated. The mother was awarded custody, the father was granted visitation rights. At the mother’s request, the Chilean court entered a ne exeat order. The mother removed the child from Chile without the father’s consent. The father located his son in Texas, and sought an order requiring the return of the child to Chile

12

For example, for a child with habitual residence in an EU Member State, Brussels IIa would apply (Article 61(a) of Brussels IIa). For a child with habitual residence in a CS of the 1996 Child Protection Convention, which is not an EU Member State, the 1996 Child Protection Convention would apply (Article 5). 13 Abbott v Abbott, 560 U.S. (2010).

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pursuant to the Abduction Convention. The district court dismissed the claim, arguing that the father’s ne exeat right did not constitute a custody right under the Convention. The US Supreme Court decided differently, because ‘ne exeat rights are just one of the many ways in which custody of children can be exercised’, and denying custody rights to a parent holding a ne exeat right would obstruct the very essence of the Abduction Convention, unless, of course an exception to the return remedy is established. 13.20 The decision mirrors, in my opinion, the purpose and the philosophy of the Abduction Convention.14 13.21 As to the grave risk exception, the allegation of (domestic) violence is taken extremely seriously. Austria, having introduced a law on the protection against violence in the family,15 is reluctant to return the child when the exception is invoked, and thus leaves room to apply Article 13(b) of the Abduction Convention. General allegations (for example, that all children’s homes are prone to abuse and/ or violence) do not suffice for a refusal to return the child. Neither would the allegation that the other parent is an alcoholic or drug abuser and, hence, a grave risk to the child, if in the country of origin no authority intervened ex officio or on application. 13.22 Of great practical importance is the speed of the procedure, because that is, generally, in the best interest of

14

This decision was, understandably, welcomed by the Special Commission on the practical operation of the 1980 and 1996 Hague Conventions (Hague Conference on International Law, 1–10 June 2011). Conclusions and Recommendations adopted by the Special Commission, para 45 accessed 26 June 2013; 1980 Custody Convention. 15 Gewaltschutzgesetz, BGBl 1996/759, entry into force on 1 May 1997.

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the child. The more allegations with regard to the grounds for exceptions that are advanced, the more caution is understandable — but not always justified. The Hague Conference is very much concerned about the operation of its Conventions in practice.16 13.23 One of the priorities advanced by countries like Austria is the concern relating to the legally binding force of (cross-border) mediated agreements (or agreements reached as a result of other amicable dispute resolution processes) on custody and contact, and their recognition and enforcement. The Convention does not deal with this issue. Cross-border mediation is welcomed by the Austrian Federal Ministry of Justice, provided it is bi-national, bi-gender, and bi-professional.17 At least at present, the elaboration of a Protocol to the Convention on this issue has been abandoned.18 In my opinion, this is a missed opportunity.19

16

Conclusions and Recommendations adopted by the Special Commission ( n 1 4 ) , P a r t I < w w w. h c c h . n e t / i n d e x _ e n . p h p ? a c t = p u b l i c a t i o n s . details&pid=5378&dtid=2> accessed 26 June 2013; Conclusions and Recommendations (Part II) adopted by the Special Commission on the practical operation of the 1980 and 1996 Hague Conventions (Hague Conference on Private International Law, 25–31 January 2012) accessed 26 June 2013. 17 Interview with Fucik, Austrian Federal Ministry of Justice. 18 The abandoning of the Protocol on this issue was a result of the responses to the questionnaire drawn up in 2010 by the Permanent Bureau of the Hague Conference on Private International Law: ‘Questionnaire on the Desirability and Feasibility of a Protocol to the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction’ (Prel. Doc. No 2 of December 2010) accessed 26 June 2013. 19 States that answered negatively to such an option probably did so because they would have had primary responsibility for the time-consuming and onerous task of drafting such a protocol. However, some amendments would indeed improve the operation of the Abduction Convention. See, e.g., Peter Ripley, ‘A Defence of the Established Approach to the Grave Risk Exception in the Hague Child Abduction Convention’ (2008) 4(3) Journal of Private International Law 443.

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13.24 Cross-border direct judicial communications have developed ‘organically’.20 Amongst the various options prepared by the Permanent Bureau,21 the majority of the experts expressed support for the International Hague Network of Judges (IHNJ) and welcomed the development of soft law tools such as a ‘guide to good practice’ on direct judicial communications to assist judges. Indeed, the role of the judges is very important. The authorities of the requested State must evaluate the facts of the case while adhering to the concept of ‘best interest of the child’ that corresponds to the goal of the Abduction Convention, which does not necessarily mirror their personal view. Admittedly, the goal of the Abduction Convention to secure the prompt and safe return of the child is to some extent linked to the best interest of the child. However, a review on the merits is not provided for by this Convention, in general, for sound reasons. 13.25 The practical operation of the Convention also requires the elaboration of a consistent interpretation and application of the grave risk exception. To this end, the Council on General Affairs and Policy authorised the setting up of a working group consisting of judges, CAs and interdisciplinary experts to create a practice guide on the interpretation and application of Article 13, paragraph 1(b).22 The guide is intended to render assistance in the interpretation of the said provision. It is conceded that such

20

See Permanent Bureau of the Hague Conference on Private International Law, ‘HCCH International Family Law Briefing: Hague Conference Update’ (June 2012) International Family Law 230, 231 accessed 26 June 2013. 21 ibid 231. 22 Council on General Affairs and Policy of the Conference, ‘Conclusions and Recommendations adopted by the Council’ (Hague Conference of Private International Law, 17-20 April 2012) Recommendation No. 6 accessed 26 June 2013.

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rules are to be regarded as information and suggestions; they cannot bind the CAs. Yet, as the case law of the European Court of Human Rights (ECtHR) demonstrates, there is need for clarification. 13.26 The main advantage of the Abduction Convention is the goal it pursues: the speedy return of the child without deciding on the merits of the case. However, some parties might feel more comfortable and perhaps more inclined to cooperate with the authorities if a global solution (triggered by the child’s abduction and encompassing the procedure on the child’s return) were to be found, in which there was a consensus on residence, custody and access rights. Whether a mediated agreement is in line with the best interests of the child requires an independent judicial decision, which — as things stand now — needs to be delivered by a competent court of the State of origin. Ideally, a global solution might also include the protection of the child, as envisaged in the 1996 Child Protection Convention, and (child) maintenance. The parties must recognise what is materially and immaterially feasible and realistic for the mediated agreement’s long-term success. 13.27 Case law of the ECtHR seems to indicate divergences between the need for interim measures according to Rule 39 of the Rules of Court and the implications the granting of such measures may have on the application of the Abduction Convention when it comes to deciding the protection of family life.23 Indeed, the ECtHR has in at least three cases postponed the enforcement of decisions based on the Abduction Convention to return the child

23

European Convention on Human Rights (EHCR) (Rome, 4 November 1950) 213 U.N.T.S. 222, entered into force 3 September 1953, art 8.

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on the basis of interim decisions.24 It claimed that the return of the child at the time of these decisions (delivered considerably later) violated family life protected by Article 8 of the European Convention on Human Rights.25 As a result, the ultimate goal of the Abduction Convention was defeated and its operation paralyzed. 13.28 The Neulinger and Shuruk v Switzerland26 case provoked serious criticism. In the Neulinger case Ms. NEULINGER lived in Israel where she married an Israeli national; their child was born two years later. Apparently, Mr. NEULINGER joined an ultra-orthodox, radical movement. Marital difficulties arose. Ms. NEULINGER feared that her husband would take the child abroad for religious indoctrination and she applied to the court for a ne exeat order to prevent the son’s removal from Israel. The mother was granted temporary custody, the guardianship was to be exercised jointly by both parents, and the father was granted a right of visitation. Due to difficulties in the marriage, Israeli social services instructed the parents to live apart in the interest of the child. In due course, the visitation rights of the father were restricted. The couple divorced, but the joint guardianship remained unchanged. The father failed to pay child maintenance and an arrest warrant was issued against him. The mother applied for annulment of the ne exeat order, which was dismissed. She secretly left the country with the child. One year later, the

24

Rule 39 of the ECtHR Rules of Court (ECtHR) allows the ECtHR to, at the request of a party for an interim measure, prevent return until the case has been decided. 25 See, Neulinger and Shuruk v Switzerland App no 41615/07 (ECtHR, 6 July 2010); Rabin v Romania App no 25437/08 (ECtHR, 26 October 2010); Šneersone and Kampanella v Italy App no 14737/09 (ECtHR, 12 July 2011). 26 Neulinger (n 25).

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child was located in Switzerland. The Israeli authorities requested return of the child. Upon application of the father, the Tel Aviv Family Court held that the child was habitually resident in Tel Aviv, that until the removal of the child the parents had remained joint guardians, that the mother had temporary custody and the father a right of visitation. Then the father lodged an application in Switzerland seeking an order for the child’s return to Israel. In the two first instances, his application was dismissed. The Court of Appeal did prescribe measures with a view to rebuilding the personal relationship between the father and the child. The expert opinion on which the decision of the Court of Appeal was based stated that the child’s return to Israel with his mother would expose him to a risk of psychological harm whose intensity could not be assessed without ascertaining the conditions of that return (especially the conditions awaiting the mother and the repercussions for the child). However, the return without his mother would expose the child to a risk of major psychological harm, and, in addition, the maintaining of the status quo would represent for the child a risk of major psychological harm in the long run. The father lodged an appeal with the Swiss Federal Court, which ordered return of the child to Israel. Mother and child lodged an application against the Swiss Confederation with the ECtHR. They alleged that their family life (Article 8 of the ECHR) had been violated; more specifically, that the grave risk exception had not been construed correctly by the Swiss Federal Court and that they were perfectly integrated in Switzerland. The First Chamber (decision of 8 January 2009) held by four votes to three that there had been no violation of Article 8 of the ECHR. However, the Grand Chamber of the ECtHR (decision of 6 July 2010) held by 16 votes to one that the return of the child in view of the situation at the time of taking the decision

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was not appropriate. A return of the child with the mother was not deemed just and reasonable for either of them; a return of the child without the mother would not be in the best interest of the child and would violate family life rights under Article 8 of the ECHR. This decision, which was notable for many reasons that cannot be addressed here,27 seems to require that the national courts conduct ‘an in-depth examination of the entire family situation and of a whole series of factors, in particular of a factual, emotional, psychological, material and medical nature’ and make ‘a balanced and reasonable assessment of the respective interests of each person, with a constant concern for determining what the best solution would be for the abducted child in the context of an application for his return to his country of origin’.28 Although it is not the task of the ECtHR to take the place of the competent authorities in examining the grave risk exception, it is, according to the ECtHR, ‘competent to ascertain whether domestic courts … secured the guarantees set forth in Art 8 ECHR, particularly taking into account the child’s best interests’.29 This implies that the requested State is required to do what it should not do according to the Abduction Convention, namely to examine the merits of the case. As the ECtHR takes into account the developments that have occurred since the Swiss Federal Court’s judgment, particularly the ‘subsequent developments in the applicants’ situation’, the enforcement of the final Swiss judgment would violate Article 8 of the ECHR. This means that the

27

Among other notable aspects, the case overruled Maumousseau & Washington v France ECHR 2007-XIII; see also the dissenting opinion of judge Zupančič to Neulinger and Shuruk v Switzerland. 28 Neulinger (n 25) no 139. 29 Neulinger (n 25) no 141.

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passage of time turns wrongful behavior into a justification of such behavior.30 13.29 In the context of Brussels IIa, the European Court of Justice (ECJ) held that ‘a judgment of the court … which requires the return of the child, is enforceable, even if it is not preceded by a final judgment on custody rights; the enforcement of a certified judgment requiring the return of the child may not be refused on account of a judgment delivered subsequently by a court of the Member State of enforcement’.31 Last but not least, ‘enforcement cannot be refused on the grounds that it would constitute a serious risk to the best interests of the child on account of changed circumstances after its delivery’.32 The ECtHR declined in July 2012 to grant an interim measure.33 13.30 One of the secrets of successful custody orders and thus, the reduction of child abductions, is the interaction between the custodian parent, the child, and the other parent. The parent–child relationship is now given more weight than when the Convention was completed. Certainly the role of the child has changed considerably, but the role of the non-custodian parent, usually the father, has also received more attention. More fathers wish to be involved in the care and upbringing of their children, and certainly their responsibility as a parent has been much more accentuated than used to be the case. The child has, in and outside litigation, a proper place as an individual

30

See also the concerns of the Special Commission on the practical operation of the 1980 and 1996 Hague Conventions (1–10 June 2011). Conclusions and Recommendations (n 14). 31 C‑211/10 Doris Povse v Mauro Alpago [2010] ECR I-6669. 32 ibid. 33 Communication by the Austrian Federal Ministry of Justice.

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whose rights must be respected. This calls for agreements between the parties involved that are in conformity with the best interests of the child. 13.31 In child abduction cases, swift action is indispensable. The decision whether to return the child or not needs to be taken within six weeks counting from the commencement of the proceedings. A (mediated) agreement within this period of time has, in my opinion, hardly any chance of success (i.e., compliance by the parties) in the long run. But once a return order has been delivered, these changed approaches in family and child law ought to be looked at more closely and good reasons seem to favor (mediated) agreements.

(4) Implementation of the Convention in Austria 13.32 General Remarks. In international abduction cases, the Abduction Convention must be applied, because Austria is a CP. The domestic law implementing this Convention deals with the domestic procedure, inter alia, legal aid, translations, jurisdiction and the competent CA (in Austria, the Federal Ministry of Justice). If the foreign State is an EU Member States (except for Denmark) Brussels IIa must be applied in addition. And finally, the provisions of the Law on Jurisdiction over Non-contentious Matters (Law on JNCM)34 lay down further procedural details. 13.33 The Domestic Law Implementing the Convention. The domestic law of 9 June 1988 with which the Abduction Convention was implemented35 has been amended several

34

BGBl I 2009/75, as amended by BGBl I 2013/15. BGBl (OJ) 1988/513.

35

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times.36 The 2009 Law Reform introduced, inter alia, § 111a in the Law on JNCM.37 The 2013 Reform introduced important provisions, inter alia, on the Family Court Assistance Board (FCAB; §§ 106a, 106b and § 106c). 13.34 Chapter 7 of the Law on JNCM.38 § 111a of the Law on JNCM states that ‘The provisions of this Chapter apply correspondingly to the procedure according to the Hague Convention of 25 October 1980 on the civil aspects of international child abduction, BGBl Nr 512’.39 The reference to ‘this Chapter’ stands for Chapter 7 on the Regulation of Custody and Personal Contacts in the frame of non-contentious jurisdiction (§ 104–§ 111a). Chapter 7 is generally only applied if an Austrian court is required to decide on the merits, which usually is the case for requests from another country or in contact proceedings, if the child is in Austria. 13.35 The specific context of the provision in Chapter 7 seems somewhat misleading, because Chapter 7 actually has domestic cases in mind, whereas a decision on the return of the child shall not be taken to be a determination on the merits of any custody issue (Article 19 of the Abduction Convention). However, the parallel structure of the special

36

Amendments include: in 2003, by BGBl I 2003/112 (Law accompanying the Law on JNCM) (AußStr-BegleitG), on the occasion of the introduction of the Law on JNCM, AußStrG, BGBl I 2003/111; in 2009, by BGBl I 2009/75 (Law amending Family Law) (FamRÄG 2009); and very recently, in 2013, by BGBl I 2013/15 (Law amending Child Law and the Law on the Name) (KindNamRÄG 2013), in force since 1 February 2013. 37 Entry into force on 1 January 2010, see § 207c, Art 4 FamRÄG 2009. 38 See in detail Pesendorfer, Familienrechts-Änderungsgesetz 2009 mit eingetragene Partnerschaft und Kinderbeistand (2010) § 111a (IV. Außerstreitgesetz AußStrG) 39 See generally OGH 22.9.2010, 6 Ob 174/10x.

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procedural rules on custody and contacts on the one hand and of the return procedure on the other, was deemed to justify the insertion of § 111a in Chapter 7.40 13.36 Minors who have attained the age of 14, and who are not older than 16 years of age (pursuant to Article 4 of the Abduction Convention), can act independently before the court. Depending on the child’s capacity to comprehend, the court shall make sure that the minor can exercise his or her procedural rights and shall inform him or her of existing advisory services (§ 104, paragraph 1).41 In custody and personal contact proceedings, a child under the age of 14, and under certain circumstances a child under the age of 16 with its consent, shall be assisted by counsel (§ 104a, paragraph 1).42 Considering that return proceedings are supposed to be handled quickly, the appointment of a counsel is, in general, counterproductive. This may be different, however, in proceedings under Article 21 (exercise of the rights of personal contact). 13.37 Every minor who has attained the age of 10 years must be heard in person by the court, unless other reasons suggest that the child can be heard through others (e.g., FCAB, YWA, expert, etc.).43 The child need not be heard if this would jeopardise his or her best interests or if the child’s capacity to comprehend is inadequate (§ 105, paragraph 2). This provision corresponds to Article 13, paragraph 2 of the Abduction Convention and Article 11, paragraph 2 of

40

See IA 673/A NR XXIV.GP, 34. BGBl I 2003/111 (entry into force on 1 January 2005), as amended by BGBl I 2003/15. 42 BGBl I 2003/111; BGBl I 2009/137 (entry into force on 1 July 2010). 43 § 105, para 1, as amended by BGBl I 2013/15. 41

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Brussels IIa. Where appropriate, the child shall be heard in abduction cases as well. 13.38 § 106 of Chapter 7 of the Law on JNCM was amended in 201044 and provides that YWAs may be requested to give their opinion on custody and contact orders, which means that, in return proceedings, the YWA may be requested to give their opinion prior to the court decision on the return of the child or on contact rights. From a practical point of view, this may be wise for the court to act accordingly. 13.39 The FCAB (§§ 106a–c) consists of psychologists and social workers. It has the task of assisting the court to ascertain the facts, to explore possibilities of an amicable arrangement, and to provide an adequate basis for provisional court orders. 13.40 The 2013 Reform introduced the relative duty of representation of the parties by a lawyer (§ 107, paragraph 1(1)) The court may, on request issue a document on the scope of the custody rights (§ 107, paragraph 1(2)), a request which will be less likely in return proceedings. More importantly, the court may amend its decision to the disadvantage of the party who challenged the decision, if this is in the best interest of the child (§ 107, paragraph 1(3)). § 107, paragraph 4 provides for a provisional decision in custody and contact rights cases, which would be a provisional return order in the context of return proceedings. However, the application of this provision would certainly contradict the Abduction Convention, and should, therefore, not be applied. Reimbursement of costs is explicitly excluded by § 107, paragraph 5. By reference

44

BGBl I 2009/75 (entry into force on 1 January 2010).

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to § 111a, this also applies to return proceedings.45 In 2013, the parties (the child and the custodian) have been given the right to question provisional measures ordered by the YWA before the court (§ 107a). 13.41 Contact rights without the consent of a minor child who has attained the age of 14 shall not be insisted upon. Without such child’s consent, and if attempts to attain an amicable solution remain unsuccessful, contact requests shall be dismissed (§ 108).46 13.42 Generally, agreements on custody and personal contact rights, in the context of return proceedings on the return of the child, may, but need not be followed by a formal approval procedure. In practice, it is rare for parents to reach an agreement on the return of the child, and the return of the child in these rare cases should not be delayed by an approval procedure as provided for in § 109.47 However, the court’s approval might prove useful when it comes to agreements on personal contact rights. The need for speedy action is probably, but not necessarily less urgent in this respect. 13.43 The application of the general rules on enforcement48 is explicitly excluded with regard to return decisions (§ 110, paragraph 2). Instead, appropriate legal coercive measures, based on a court decision, an amicable arrangement or

45

See IA 673/A NR XXIV.GP, 34. In clear cases, in which costs were incurred through the implementation of the return proceedings, an independent claim for damages remains possible (OGH 24.2.2009, 10 Ob 99/08v). 46 BGBl I 2003/111 (entry into force on 1 January 2005). 47 BGBl I 2003/111 (entry into force on 1 January 2005). 48 Exekutionsordnung (EO), Act on Enforcement, RGBl 1896/79 (latest amendment BGBl I 2013/33).

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on an order by the civil registrar (§ 110, paragraph 1),49 as provided for in § 79, paragraph 250 of the Law on JNCM, shall be taken, using if necessary (in custody cases) appropriate direct force, unless the best interests of the child are jeopardised.51 These measures are also possible against the express wishes of the person who does not live together with the child.52 The YWA or juvenile court representatives may be required to support the enforcement procedure in the best interest of the child, e.g., measures of provisional care. 13.44 The court may appoint a contact supervisor whose tasks and power will be defined by the court (§ 111).53 Such an appointment may be advantageous in both return and contact proceedings, especially if the court releases a provisional decision on personal contact rights. 13.45 Although the legislature wishes Chapter 7 to be applied by analogy in abduction cases, not every provision seems adequate to fulfill the aim of the Abduction Convention, which is, in principle, the speedy return of the child (if that is in the child’s own best interest).

49

As introduced by the 2013 Reform, BGBl I 2013/15. § 79, paragraph 2 of the Law on JNCM provides that legal coercive measures can comprise: (1) fines; (2) imprisonment for contempt of court for a period of up to one year; (3) enforced appearance; (4) seizure of documents, movables, etc.; (5) appointment of a curator to carry out the acts in default. 51 Law on JNCM, § 79, para 3. 52 Provision introduced in 2013, BGBl I 2013/15. 53 BGBl I 2003/111 (entry into force 1 January 2005). 50

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(5) Austrian Case Law54 13.46 The Austrian Supreme Court (ASC), as well as the lower courts, underlined the need for speedy return proceedings, restoration of the child’s original situation and prevention of the creation of artificial international jurisdiction.55 The ASC has made very clear that the return of the child is not a determination on the merits of any custody issue (Article 19 of the Abduction Convention).56 13.47 Article 4 of the Abduction Convention requires its application to any child who was habitually resident in a CS immediately before any breach of custody or contact rights. This has been acknowledged by the courts.57 13.48 Case law affirms that the requirements of Article 3, paragraph 1(a) and (b) must be fulfilled cumulatively.58 Some case law exists on the interpretation of Article 5(a) (‘rights of custody’, including in particular the right to determine the child’s place of residence). According to the ASC, wrongful removal of the child is also established if a parent is the sole custodian but is required to (and fails to) ask the other parent’s permission to take the child abroad.

54

See Schütz, in Alfred Burgstaller and Matthias Neumayer, Internationales Zivilverfahrensrecht (2006): Decisions cited in the Commentary to Article 45 HKÜ (1980 Hague Convention). 55 OGH 1.9.1992, 4 Ob 538/92; Elisa Pérez-Vera, ‘Explanatory Report on the 1980 Hague Child Abduction Convention’ (Hague Conference on Private International Law 1982) para 15. 56 OGH 11.7.1990, 1 Ob 614/90; OGH 29.4.1992, 2 Ob 537/92; LGZ Wien 22.10.1991, 43 R 644/91. 57 OGH 19.9.1989, 5 Ob 604/89. 58 OGH 16.4.1998, 8 Ob 368/97v.

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Lacking such permission, the removal is wrongful.59 This might be different if a court requires its permission to take the child abroad. In such a case, the right of the other parent to consent to the removal is not necessary. Hence, the removal may be contrary to the court’s decision, but it does not necessarily constitute a wrongful removal under Article 3(a).60 In contrast, the ASC also decided that custody in the sense of the Abduction Convention is protected if the parents have joint custody and one parent moves away with the child without asking the other parent for permission. In such a case, the normal exercise of joint custody is interrupted and leads to a violation of the Abduction Convention.61 13.49 The ASC has also dealt with the interpretation of Article 16 and Article 17. Article 16 is the source of the socalled ‘barrier effect’. The legal question to be decided was whether the barrier effect was triggered by arrival of the return application at the court that actually had jurisdiction or at another court (which lacked jurisdiction). The ASC held that this was not relevant. If, in spite of the barrier effect, a custody decision had been given, it would be not grounds for refusal of the return of the child (Article

59

See Pérez-Vera (n 55) para 84; OGH 5.2.1992, 2 Ob 596/91: The English Court ordered that the children could not be removed from England and Wales by the mother without the permission of the father. The mother was the custodian of the children and took them to Austria. The father requested return of the children. That was refused by the SC because the return of the children would jeopardise the best interest of the children, especially because it remained unclear where and with whom the children were supposed to live. 60 OGH 12.2.1997, 7 Ob 35/97s: Canadian court order prohibiting the removal of the children abroad. They were nevertheless taken to Austria. The ASC held there was no violation of the Abduction Convention. 61 OGH 11.7.1990, 1 Ob 614/90. For a critical appraisal of this decision see Schütz (n 54) Article 45 HKÜ No 8. To this issue see also Pérez-Vera (n 55) para 71.

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17). In any case, the Abduction Convention has priority over such a decision.62 13.50 The fact that the child is settled in its new environment (‘social integration’) is only decisive if proceedings have been commenced after the expiration of the period of one year (Article 12, paragraph 2). The courts make this very clear: in a Spanish–Austrian case, the mother moved away with the child from Spain to Austria without seeking permission from her husband. He commenced the return proceedings within the one-year period; she argued that the child was settled in its new environment. The Court dismissed this argument.63 Indeed, Article 12 reflects the idea that the speedy return of the child corresponds to his or her best interests.64 The disturbance to the child by a return within one year is considered less serious than the violation of the custody rights of the person seeking the return of the child.65 Wrongful removal or retention is an act that begins at the moment when the child was supposed to be returned to the custodian parent66 or when the permission to extend the stay of the child at a place other than his or her habitual residence was denied.67 13.51 According to Article 13, paragraph 1(a), one of the reasons for non-return is that the person in care of the child ‘was not actually exercising the custody rights’. This requires, of course, a careful weighing of the factual circumstances in each case. Illness, studies abroad and professional

62

64 65 66 67 63

OGH 27.4.2011, 7 Ob 234/10b. LGZ Wien 25.7.1990, 43 R 466/90. See also OGH 24.11.2011, 6 Ob 230/11h; OGH 12.5.2009, 5 Ob 47/09m. OGH 31.3.1998, 4 Ob 88/98. OGH 25.6.1992, 8 Ob 535/92. See Schütz (n 54) Art 45 HKÜ No 16 with further references.

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restraints do not necessarily prove that custody rights have not been actually exercised.68 13.52 The exposure to physical or psychological harm or placement of the child in an intolerable situation (Article 13, paragraph 1(b)) may be established if it turns out that the child becomes a ‘bone of contention’ in the return proceedings, as was the case in a French–Austrian return proceeding. After the abduction of a child by the mother to Austria, but before the Austrian court had decided on the return of the child, the French court awarded her the right to determine the child’s habitual residence. The Austrian Court of Appeal took that decision into account; the ASC held that if the child were returned to France and later on, after the French court’s decision, be returned to the mother who abducted the child, the child would be treated as a ‘bone of contention’ regardless of its needs. Hence, the reason for non-return of the child according to Article 13, paragraph 1(b) was established.69 The same would apply, if the return of the child would cause ‘neurotic disorder’. The ASC affirmed such a risk in a Californian–Austrian case when refusing to return the child. The family had been living in California. Mother and child came to Austria for a holiday and remained there. The father requested return of the child. Before a final decision was reached in Austria, the Californian court decided to award provisional sole custody to the mother and to prohibit the father any direct contact with the child. The ASC held that the restoration of the ‘status quo ante’ was not possible, the child was meanwhile well settled in Austria, the mother would have to earn her living in California, thus leaving the child with

68

See Schütz (n 54) Art 45 HKÜ No 22 with further references; LGZ Wien 22.10.1991, 43 R 644/91. 69 OGH 15.4.1998, 7 Ob 72/98h.

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other persons to take care of the child and far away from its Austrian grandparents, and the return of the child to California would cause serious health problems to the child; therefore, a non-return decision was made.70 Other reasons, such as a strong aversion to the custodian parent together with the separation of siblings, may constitute a sound basis for non-return of the child. In a BritishAustrian case, the mother moved away with the children to Austria and the father claimed return of the children. The relationship between the father and the eldest son was deeply disrupted. Siblings should, to the extent possible, not be separated. A return to the father was not feasible. Hence, it was not possible to predict, how the children would develop, if the mother remained in Austria. The ASC declined to order the return of the children.71 Differing circumstances led to a different conclusion, however, in an Italian–Austrian case; one of the children refused to return and the other children were forced to return.72 In a Turkish–Austrian case, the ASC did not recognise a ‘general empirical principle’ according to which the return of a five-year-old child who had been abducted when it was about one year old would by principle cause severe psychological harm to the child. However, the ASC agreed with the decision of the Court of Appeal in which it was argued that the best interest of the child had to be given clear priority in considering the return of an abducted child. The ASC stated that mere short-term feelings of unhappiness could not be regarded as ‘psychological harm’ in the sense of Article 13, paragraph 1(b) if it could be assumed with reasonable certainty that the child would

70

OGH 1.9.1992, 4 Ob 538/92. OGH 5.2.1992, 2 Ob 596/91; OGH 20.5.1992, 1 Ob 532/92. 72 OGH 24.11.2011, 6 Ob 230/11h. 71

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become psychologically balanced after a certain period of familiarisation.73 It also held that an expert opinion with regard to the condition of the child in the case at stake seemed advisable. Although expert opinions usually slow down the proceedings, contrary to the goal of the Abduction Convention, Austrian courts have found it appropriate at times to obtain expert advice. If the lapse of time since the beginning of the proceedings together with the expert opinion lead to the conclusion that the conditions set out in Article 13, paragraph 1(b) are established, the child will not be returned, as was decided, for example, in an American–Austrian case.74 The ASC has generally found that expert opinions should be obtained only in exceptional cases.75 13.53 It goes without saying that sound arguments of the abductor, together with disrupted marriage bonds and uncertainty as to the living conditions of the abductor and the child in the country of origin may lead parties to believe that an expert opinion is necessary. The lapse of time then results in the refusal of return. However, one must keep in mind that the Abduction Convention demands the speedy return of the child. If a parent wrongfully abducts a child, the return of abductor together with the child is, depending on the circumstances of the case, a reasonable consequence, in order to avoid the separation of the child from both parents. The abductor must then weigh that possibility himself or herself, because his or her own interests are not considered in the proceedings.76

73

OGH 8.10.2003, 9 Ob 102/03w. OGH 27.10.1993, 7 Ob 596/93. 75 OGH 12.1.2011, 6 Ob 2/11d; OGH 12.5.2009, 5 Ob 47/09m; OGH 7.10.1997, 4 Ob 298/97w. 76 OGH 24.11.2011, 6 Ob 230/11h. 74

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13.54 Whether the child is settled in its new environment is to be judged at the time of the return decision on the basis of the real living conditions. The courts explore whether the child is socially integrated in its new environment. If that is the case, return of the child is refused.77 It is obvious that if the abductor hides the child from the other parent, that parents cannot commence proceedings, since the whereabouts are unknown. Parents who could commence proceedings but refrain from doing so take the risk that their child is meanwhile settling into the new environment. 13.55 The right of the child to be heard is generally accorded by Austrian authorities to children that have attained at least 10 years of age. In a German–Austrian case, the ASC held that the 10-year-old child was mature enough to express his own wishes. The child did not wish to return. The Court decided accordingly.78 In a Turkish–Austrian case, the child was around five years old and did not wish to return to Turkey. In that case, the ASC held that such wishes could only be taken into account if the child was old and mature enough to express his or her will, which was not the case with the five-year-old.79 In a Swiss– Austrian case, the father retained the child wrongfully and insisted that the four-year-old child be heard personally. The ASC pointed out that courts may refrain from hearing the child, if the capacity of the child to comprehend is of such nature that considered, deliberate statements cannot be expected.80 However, if the child has reached the age of 12, it can generally be assumed that the child is old

77

79 80 78

OGH 11.9.1990, 1 Ob 614/90; OGH 17.5.1990, 7 Ob 573/90. OGH 29.4.1992, 2 Ob 537/92. OGH 8.10.2003, 9 Ob 102/03w. OGH 12.1.2011, 6 Ob 2/11d. See for a three-year-old child: OGH 25.11.2003, 5 Ob 272/03s.

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and mature enough to express his or her will.81 In an Italian–Austrian case, the ASC held that it was up to the competent authorities to judge whether the child was old and mature enough to express his or her will in order to be taken into account; facts are not to be decided by the ASC,82 provided no mistakes were made that come close to abuse of rights. In a Hungarian–Austrian case, the mother wrongfully retained the child in Austria. The child, aged nine and a half, was heard and also seemed mature enough to express its will. The ASC had, for sound reasons, no grounds to depart from its previous case law.83 13.56 Brussels IIa complements and modifies the Abduction Convention in abduction cases within the EU. Courts of the State in which the child was abducted or retained enjoy jurisdiction for the return proceedings (Article 11, Brussels IIa) and for provisional and protective measures (Article 20, Brussels IIa), provided such measures are deemed necessary because of the mere presence of the child in that country. This jurisdiction is not meant to give courts the ability to avoid ordering the return of the child (by, for example, awarding provisional custody to the abductor). Hence, if a child is, for example, wrongfully retained in an EU Member State — as was the case in a Spanish-Austrian case — the courts in that Member State cannot award provisional custody to the abductor simply to avoid having the child returned.84 In a Greek–Austrian case, the mother had wrongfully removed the child to Austria. Her (meanwhile divorced) husband and father

81

OGH 18.10.2010, 6 Ob 7/10p. OGH 24.11.2011, 6 Ob 230/11h. 83 OGH 24.11.2011, 6 Ob 230/11h; OGH 29.6.2004, 3 Ob 131/04t with further references. 84 OGH 31.1.2012, 1 Ob 254/11a. 82

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of the child seemed to have a mental condition (he heard voices, believed that a miracle would occur, thought he was a representative of God, was violent to her, forced her to wear long dresses, prohibited the child from going to school, etc.). The parents shared custody in the sense of the Abduction Convention. The return of a child can be refused by the court if there is a serious threat to the best interest of the child. However, the return cannot be declined if the other State (Greece) has provided appropriate measures to protect the child. The child in this case was heard and its wishes were taken into account. The case was sent back to the Court of Appeal for possible further taking of evidence.85 The ASC decided later (in the same case) that the child should be returned to Greece but not be entrusted to the care of the father in Santorin, because the Abduction Convention only requires the return to the country from which the child was wrongfully removed or retained, not necessarily to the place where it used to live.86 The ASC held that Article 13 must be interpreted strictly and that only in very rare cases could a court refuse an application for the return of a child.87 This decision has been criticised for humanitarian reasons and against the background of free movement of persons within the EU.88 However, the ASC applied the Abduction Convention and Brussels IIa correctly. A child is not the property of a parent, and if marital problems come up, they should, in addition to custody matters, be solved first in the country that has primary jurisdiction.

85

87 88 86

OGH 24.9.2009, 1 Ob 163/09s. See also OGH 12.5.2009, 5 Ob 47/09m (German-Austrian case). See, eg, OGH 7.12.2000, 2 Ob 291/00h; OGH 16.7.2009, 2 Ob 103/09z. Critical appraisal by Fucik, Haager Kindesentführungsabkommen — Rückführungshindernis als Kindeswohlgefährdung (Zak 2009) 574.

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13.57 Some court decisions took into account the best interest of the child during the enforcement of the order. The ASC held in 1996 that this may be justified if the circumstances between the return decision and its enforcement have changed.89 Caution in this regard is, however, justified.90 Indeed, the ECtHR held in the Sylvester-Austria case that Austria violated Article 8 of the ECHR because appropriate measures to enforce the return decision had not been taken.91 The ASC held in a French–Austrian case that enforcement of a return decision could only be halted in very exceptional cases, if the enforcement would constitute a grave risk to the best interests of the child.92 However, under Brussels IIa (Articles 10–11), the return of the child cannot be refused if adequate arrangements have been made to secure the protection of the child after his return. If between the return decision and the enforcement new circumstances arise that put the best interests of the child at serious risk, appropriate measures according to § 110 of the Law on JNCM shall be taken to support the return of the child. Only if that is not feasible may the return of the child be refused. In the much disputed GreekAustrian case, the ASC stated that no new circumstances after the return decision had occurred, the enforcement of the decision could not be made dependent on conditions suggested by either party, and that the Court could decide

89

91 92 90

OGH 15.10.1996, 4 Ob 2288/96s. See Schütz (n 54) Art 45 HKÜ, no 23 with further references. Sylvester v Austria App no 36812/97, 40104/98 (ECtHR, 24 April 2003) 89. OGH 23.10.2010, 1 Ob 194/10a; such a risk may be sexual abuse by the other parent, see OGH 20.10.2010, 1 Ob 178/10y. See also the American-Austrian case (OGH 18.12.2009, 6 Ob 242/09w): Risk of jeopardising the psychological and psychosexual health of the children in addition to the decision of the American court, which awarded sole custody to the father, thereby risking the separation of the children from the mother who wrongfully removed the children. Result: no enforcement of the return decision.

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freely which measures were appropriate for returning the child. According to § 110, paragraph 4 of the Law on JNCM, a variety of measures may be appropriate, such as the support of the YWA, the provisional care of the child by such institutions, and the participation of a psychologist, whereas direct force is restricted to court officials who can be supported by police.93 Based on § 111a of the Law on JNCM, the ASC decided that no return decision shall be made, if a court in the State in which the child was habitually resident immediately before the wrongful removal or retention awarded sole custody and the right to determine the child’s place of residence to the parent who abducted or retained the child.94 Nor does a provisional custody order hinder a return decision.

(6) Summary 13.58 Case law seems to demonstrate a rather strict approach to refusals to return the child and halting the enforcement of a return decision. This is, within the EU, partly due to the slightly stricter approach of Brussels IIa. The ECHR has an impact as well. 13.59 The analogous application of Chapter 7 of the Law on JNCM has given Austrian courts the necessary flexibility to react to specific circumstances of the case. Of special importance are the right to be heard, the enforcement proceedings, and the cost-regulation. 13.60 Although some decisions of the ASC may seem harsh, they do reflect a correct application of the Convention, in

93

OGH 17.2.2010, 2 Ob 8/10f. OGH 24.2.2011, 6 Ob 27/11f.

94

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line with the UN Convention on the Rights of the Child and the European Charter. As a general rule, the child is to be returned to the country of origin. It is up to that State to ensure that adequate measures are taken to avoid risks for the child. This mechanism works reciprocally between the CS. They share, therefore, the same interest. This also applies to the parties involved. They must stick to the legal requirements and should not rely on approval of their wrongful behavior, because both the Abduction Convention and Brussels IIa pursue the goal of returning the child as soon as possible while safeguarding fundamental principles of law. The speed of the procedure reflects the respect for the best interest of the child.

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The Rotterdam Rules and the International Rule of Law Lijuan XING1

(1) Introduction: The Rotterdam Rules and its Interpretation 14.01 The United Nations (UN) adopted the Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (the Rotterdam Rules) in December 2008. The significance of the Rotterdam Rules can be considered from many viewpoints. They responded to a desire to (1) modernise the extant maritime legal system at the international level and (2) develop a robust conception of international rule of law (or rule of international law). This chapter surveys the significance of the Rotterdam Rules from a perspective that is not commonly found in the contemporary literature on pertinent topics — that is, to clarify the ‘international character’ included in the built-in interpretation clause (i.e., Article 2) of the Rotterdam Rules, in the context of international rule of law. Interpretation of the Rotterdam Rules is of particular importance because currently no international judicial institutions has competency in interpreting them and their interpretation falls within the jurisdictions of domestic tribunals.

(2) The International Rule of Law and Treaty Interpretation 14.02 The international backdrop in which the Rotterdam Rules were drafted can be depicted as an emerging legal order

1



Assistant Professor, School of Law, City University of Hong Kong

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labelled ‘international rule of law’. This international legal order reflects the change of the character of international law — from ‘law of nations’ to ‘supranational law’ — in the past six decades and indicates an expansion of functions of treaty interpretation. 14.03 I start the analysis of the implications of the new legal order for the functions of treaty interpretation by exploring the meaning of ‘international rule of law’. The pursuit of the rule of law at the international level was conceived in the perceived change of the character of international law — from governing relations between States (law of nations) to governing ‘relations between peoples of different legal and political cultures’ (supranational law).2 Two dimensions of this development of international law are observed as (i) a dramatic increase in the role of international organisations, to which States allocate powers, submitting voluntarily to restrictions on their sovereignty and (ii) an explosion in the number and variety of multilateral treaties constituting a broad set of norms to which States subject themselves.3 These dimensions produce two preconditions for the rule of law in the international arena — (a) international law is capable of significantly imposing restrictions on States’ sovereignty, despite the fact that the principles of sovereignty are still essential to the international legal system; and (b) the scope of subjects of international law has expanded from States to international organisations, individuals, nonstate groups, and private entities. A legal environment at the international level that is quite similar to the one for the rule of law in the domestic setting takes shape

2



3



John W. Head, ‘Supranational Law: How the Move Toward Multilateral Solution Is Changing the Character of “International” Law’ (1994) 42 University of Kansas Law Review 605, 621–622. ibid.

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consequently. Member States of the UN in the 2005 World Summit outcome document recognised the ‘need for universal adherence to and implementation of the rule of law at both the national and international levels.’4 14.04 The meaning of rule of law has been discussed in mountainous literature.5 A definition provided by the former UN Secretary-General, Kofi ANNAN, is one illustration of those efforts at defining the term. According to him, ‘rule of law’ is: … a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.6 14.05 The foregoing definition sets out the fundamental principles of a broad concept of rule of law, without strictly distinguishing between that at the domestic level

4 5

6





U.N. Doc.Res. A/Res/60/1 (24 October 2005) para 134. For more elaboration on typical elements of rule of law, see John W. Head, Great Legal Traditions: Civil Law, Common Law, and Chinese Law in Historical and Operational Perspective (Carolina Academic Press 2011) 542– 544. UN Security Council, ‘The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies: Report of the Secretary-General’ UN Doc. S/2004/616 (23 August 2004) 6.

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and that in the international arena. Although many of those underscored principles can apply to both concepts, some of them — supremacy of law and separation of powers, for example — are much weaker and less realistic at the international level; there is still a need to address the meaning of international rule of law separately. 14.06 A survey of recent literature from various sources reveals a smorgasbord of formulation of the meaning or elements of international rule of law. I distill from those formulations a list of elements that appear with some regularity in international-rule-of-law descriptions,7 as provided below. As would be expected, these elements are by no means all consistent with each other, and they receive very different

7



The literature that has contributed to the list includes Jeremy Waldron, ‘The Rule of International Law (2006) 30 Harvard Journal of Law & Public Policy 15; André Nollkaemper, National Courts and the Interantional Rule of Law (Oxford University Press 2011)1–6; Brandeis Institute for International Judges (BIIJ), ‘Toward An International Rule of Law’ (2010 Report, The International Center for Ethics, Justice and Public Life, Brandeis University, 2010); BIIJ, ‘The International Rule of Law: Coordination and Collaboration in Global Justice (2012 Report, The International Center for Ethics, Justice and Public Life, Brandeis University, 2012); Nehal Bhuta, ‘Are Sovereigns Entitled to the Benefit of the International Rule of Law?’ (2011) 22 European Journal of International Law 315; Jennifer Hillman, ‘An Emerging International Rule of Law? — The WTO Dispute Settlement System's Role in Its Evolution’ (2010–2011) 42 Ottawa Law Review 269; Kevin Burke, ‘Understanding the International Rule of Law as a Commitment to Procedural Fairness’ (2009) 18 Minnesota Journal of International Law 357; Simon Chesterman, ‘An International Rule of Law?’ (2008) 56 American Journal of Comparative Law 331; Dennis Jacobs, ‘What is an International Rule of Law?’ (2006) 30 Harvard Journal of Law & Public Policy 3; Jacob Katz Cogan, ‘Noncompliance and the International Rule of Law’ (2006) 31 Yale Journal of International Law 189; Richard J. Goldstone, ‘US Antagonism Toward the International Rule of Law: The View of a Concerned “Outsider”’ (2005) 4 Washington University Global Studies Law Review 205; Mattias Kumm, ‘International Law in National Courts: The International Rule of Law and the Limits of the Internationalist Model’ (2003) 44 Virginia Journal of International Law 19; James Bacchus, ‘Groping Toward Grotius: The WTO and the International Rule of Law’ (2003) 44 Harvard International Law Journal 533.

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degrees of attention and nuances of meaning by various observers. •

•

•

•

•

• • • • •

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The rules in the international legal system emerge from a general agreement or acceptance throughout the international community, as opposed to being autocratic in origin. The rules in the international legal system are created democratically, with some input (whether direct or indirect) by all subjects of international law — that is, all subjects of international law are able to contribute to its substance and participate in its development. The rules in the international legal system do not emerge from the arbitrary will or judgment of subjects of international law in the positions of authority wielding coercive power — that is, powers cannot set or change the rules at will. International law is viewed as being a mechanism to prevent some subjects of international law from oppressing the rest ones — that is, the international legal system prevents encroachment by powerful subjects on the rights of others. The exercise of powers enjoyed by subjects of international law is based upon authority conferred by international law and is controlled by international law. The principle of pacta sunt servanda is respected by subjects of international law. Internal operations of international organisations also apply the general principles of rule of law. The rules in the international legal system are reasonably clear. The rules in the international legal system are reasonably consistent over time. General rules are laid down clearly in advance,

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•

• • •

• • •

•

• •

• •

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enabling subjects of international law to figure out what is required of them, what the legal consequences of their actions will be, and what they can rely on so far as international action is concerned. International law protects and enhances the freedom of various subjects, creating a predictable environment in which subjects can make meaningful choices. The rules in the international legal system are applicable to all subjects of international law. The international legal system treats all subjects with equality and with respect. A principle of legal equality is observed, which ensures that international law is the same for every subject and that every subject has access to judicial institutions. All subjects are treated equally before international law. The international legal system guarantees procedural fairness (‘due process’). Subjects of international law have access to judicial institutions, international or domestic, in order to safeguard their rights conferred by international law. Judicial institutions enforcing international law embody principles of independence, impartiality, equality before the law, fairness, non-arbitrariness, openness, and respect toward cultural diversity. There is an increasingly acceptance of compulsory jurisdiction of international judicial institutions. Judicial institutions and national authorities cooperate to ensure compliance with judicial decisions regarding the enforcement of international law. Judicial institutions enforcing international law, international or domestic, are independent. Judicial institutions, which operate according to recognised standards of procedural due process or natural justice, offer an impartial forum in which

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• • • • •

•

•

• •

• •

•

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international disputes can be resolved. Procedural fairness is guaranteed in the settlement of international disputes. The right to an effective remedy under international law is largely safeguarded. International disputes are settled in conformity with the principles of justice and international law. The international legal system respects fundamental principles of sovereignty. International law establishes limits on States’ sovereignty not only of a procedural character but also of a substantive character, so that certain fundamental substantive rights of individuals are safeguarded. The ultimate end of the international order is to secure the benefits of individual human being — that is, the exercise of powers, including the change of existing law, conforms to fundamental civil and political human rights. A normative regime which touches individuals directly without formal mediation through existing national institutions emerges. Universal respect for, and observance of, human rights and fundamental freedoms for all are practised. Among the obligations of subjects of international law is the duty to submit to and obey international law, in order to preserve human civilisation and avoid anarchy or chaos. Subjects of international law respect and voluntarily perform their international obligations. Subjects of international law observe widelyshared international commitments consistent with fundamental principles of human rights and respect for human dignity. Any argument made by subjects of international law for resisting its application is based on legality — that

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•

•

is, the reason for a subject to resist the application of international law to itself is that international law conflicts with the law that already applies to it and cannot be violated. Subjects of international law in the positions of authority exercise their power within a constraining framework of international norms rather than on the basis of their personal or domestic preference or ideology. International law is privileged over national law, especially regarding the establishment of the primacy of human rights covenants over domestic legal arrangements.

14.07 It is from this general array of various elements of international rule of law that I draw the rough-and-ready definition that I use for purposes of this chapter. The rough-and-ready definition of international rule of law reads as follows: The international community may be said to adhere to the international rule of law if the rules in the international legal system are developed democratically, reasonably clear in their formulation, prospective in their effect, reasonably stable over time, reasonably consistent with each other, applicable to all subjects of international law, reasonably effective — broadly adhered to by subjects of international law, enforced by independent judicial institutions — national or international — based on principles of impartiality, equality, fairness, openness, transparency and on reasonable exclusion of domestic or personal preference or bias, applicable to individuals directly for protecting their fundamental rights, reasonably

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restraining States’ sovereignty where necessary, and privileged over national laws regarding issues covered by international law. 14.08 Revealed by the above rough-and-ready definition of international rule of law is an expansion of functions of treaty interpretation as part of the process of adjudication of international law — that is, from the traditional one of ‘giving a precise definition of the meaning and scope’ of terms in a treaty8 to propagating the fundamental principles of international rule of law simultaneously. For instance, principles relating to (i) relationship between international law and domestic law, (ii) consistency in the understanding and application of international law before domestic judicial institutions, (iii) universal respect for general principles of international law, (iv) harmonisation within the entire international legal system, and (v) adherence to principles of equality, impartiality, transparency, etc. can all be significantly addressed in the process of treaty interpretation.

(3) Interpreting the ‘International Character’ of the Rotterdam Rules 14.09 Giving regard to the ‘international character’ of the Rotterdam Rules is one of the interpretation principles established by Article 2. In order to precisely identify the ‘international character’ for prospective interpretation of the Rules, I explore the meaning of the term itself in this section.

8



Interpretation of Judgments Nos. 7 and 8 (The Chorzów Factory) (Germany v Poland) (1927) PCIJ Series A, No. 13, p 10.

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14.10 The Relevance of the Vienna Convention on the Law of Treaties (1969). Despite the fact that Article 2 intends to provide built-in elements of the Rule’s interpretation, the meaning of its text still needs further clarification, and its understanding is subject to the general rules of treaty interpretation established by the Vienna Convention on the Law of Treaties (1969) (VCLT). Articles 31 and 32 of the VCLT provide six means of treaty interpretation — that is, to examine (1) plain and ordinary meaning to be given to the terms of the treaty; (2) the context of the terms, including both (a) the text, preamble and annexes of the treaty, and (b) any agreement or instrument made by the parties in connection with the conclusion of the treaty; (3) object and purpose of the treaty; (4) subsequent agreements and subsequent practices regarding the interpretation or application of the treaty; (5) ‘relevant rules’ of international law applicable in the relations between the parties; and (6) preparatory work of the treaty.9 These means can be employed to explore the meaning of the term ‘international character’ in the Rotterdam Rules, on grounds that the VCLT is regarded as a codification of the rules of customary international law and, hence, is universally binding on treaties.10 14.11 Interpreting the Term ‘International Character’ by Applying the Vienna Convention on the Law of Treaties (1969). The plain and ordinary meaning of the term is examined in the first place. The Oxford Dictionary of English defines (i) ‘international’ as ‘agreed on by all or many nations’ or ‘used by people of many nations’ and (ii)

 9

For more elaboration on interpretation approaches established by the VCLT, see Alexander Orakhelashvili, The Interpretation of Acts and Rules in Public International Law (Oxford University Press 2008) 301–392. 10 John H. Currie, Public International Law (2nd rev ed, Irwin Law 2008) 126.

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‘character’ as ‘the mental and moral qualities distinctive to an individual’ or ‘chiefly (biology) a characteristic, especially on that assists in the identification of a species’.11 Accordingly, ‘international character’ can be understood literally as ‘the qualities distinctive to a treaty that are accepted by all or many of its parties’. This description draws the bottom line for the meaning of ‘international character’ — it is something unique to international law rather than to the law of a domestic legal system; but it is not sufficient to answer the question of what the qualities are, where the qualities can be found, or how the qualities can be identified — so I turn to other means of treaty interpretation provided by the VCLT to further clarify the meaning of the term. 14.12 The ‘context’ of the term ‘international character’ in the treaty is surveyed, then. Article 2 of the Rotterdam Rules, as the built-in interpretation clause including the term, states that In the interpretation of this Convention, regard is to be had to its international character and to the need to promote uniformity in its application and the observance of good faith in international trade. 14.13 Being self-explanatory, this Article 2 enumerates three items — (1) international character, (2) uniformity, and (3) good faith – which must be respected in the interpretation of the Rotterdam Rules. Being parallel with each other, the other two items — i.e., uniformity and good faith — are of little significance in interpreting the term ‘international

11

‘international’ and ‘character’, Oxford Dictionary of English (3rd ed, online version 2012).

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character’. Neither does the term concerned appear in any other provisions of the Rotterdam Rules. It seems that the ‘context’ of the term, in this situation, contributes little to the further clarification of its meaning. 14.14 The ‘objects and purposes of the treaty’ is attended afterwards, which are articulated mainly in the Preamble of the Rotterdam Rules. I summarise the fundamental objects of the Rules there as follows: – – – –

–

– –

(#1) to further the progressive harmonisation and unification of the law of international trade; (#2) to enhance uniformity of the legal regime governing the international carriage of goods by sea; (#3) to address modern transport practices; (#4) to further develop international trade on the basis of equality and mutual benefit so as to promote friendly relations among States; (#5) to enhance legal certainty, efficiency, and commercial predictability in the international carriage of goods; (#6) to reduce legal obstacles to the flow of international trade among all States; and (#7) to provide shippers and carriers a binding and balanced universal regime to support the operation of contracts of carriage involving various modes of transport.

14.15 These objects of the Rotterdam Rules, especially objects #1, #2, #4, and #5, underscore the principles purported by the concept of international rule of law, and give more contents to the term ‘international character’. Refined by these objects, the term should be interpreted in a way that mirrors its support for pertinent principles of international rule of law.

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14.16 Since the Rotterdam Rules have not entered into force, subsequent agreements or subsequent practices are not available so far. The ‘relevant rules’ are surveyed subsequently. Article 31(3)(c) of the VCLT specifies that ‘any relevant rules of international law applicable in the relations between the parties’ can contribute to the interpretation of treaties. The priority of my attention is given to Article 3 of the United Nations Convention on the Carriage of Goods by Sea of 1978 (the Hamburg Rules), because the Hamburg Rules is one of the pillars of extant maritime legal system and contains similar text in its Article 3 to that in Article 2 of the Rotterdam Rules. Due to the facts that international acceptance and adjudication of the Hamburg Rules are considerably limited and that few judgments or academic works have surveyed its Article 3, however, the meaning of the term in the Hamburg Rules is as same ambiguous as that in the Rotterdam Rules, and is of little value in construing the meaning of the latter. Attention is then given to another ‘relevant rule’ — i.e., Article 7 of the United Nations Convention on Contracts for the International Sale of Goods of 1980 (CISG). The CISG includes the term in its built-in interpretation clause — i.e. Article 7, which has been enforced for years by different domestic tribunals and is even regarded as the direct inspiration for Article 2 of the Rotterdam Rules (as Simon Rainey has acknowledged).12 14.17 Although no domestic tribunals that applied Article 7 of the CISG have addressed the exact meaning of the term, a consensus has been reached among them that

12

Simon Rainey, ‘Interpreting the International Sea-Carriage Conventions: Old and New’ in D. Rhidian Thomas (ed), The Carriage of Goods By Sea Under the Rotterdam Rules (Informa Law from Routledge 2010) 37, 70.

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the ‘international character’ of the CISG requests the Convention be interpreted ‘autonomously’ — i.e., the Convention should not be interpreted on the basis of national law; it must be applied and interpreted exclusively on its own terms, having regard to the principles of the Convention.13 This ‘autonomous interpretation’ principle echoes the literal meaning of international character worked out above and further clarifies that the standard of being ‘distinctive to a treaty’ requires avoiding the reliance on domestic principles, concepts, rules, or cases in treaty interpretation. A similar opinion is also acknowledged by the United Nations Commission on International Trade Law (UNCITRAL), which asserts that ‘the indication about the international character of the Convention [is used] as a floodgate against an all too broad recourse to domestic law.’14 14.18 Preparatory work of the Rotterdam Rules may also provide clues to understanding the term ‘international character’. Working Group III in the UNCITRAL, which was charged with the drafting of the Rotterdam Rules, explained the reason for it to incorporate the text of Article 2 into the draft as ‘the text [of Article 2] represented standard text in many international conventions’.15 The so-called ‘standard’

13

2008 UNCITRAL Digest of Case Law on the United Nations Convention on the International Sale of Goods. . 2012 UNCITRAL Digest of Case Law on the United Nations Convention on the International Sale of Goods. . 14 Peter Schlechtriem, ‘Uniform Sales Law - The UN-Convention on Contracts for the International Sale of Goods’ (excerpt). 15 A/CN.9/621 [General Assembly, UNCITRAL, Report of Working Group III (Transport Law) on the Work of Its Nineteenth Session’ (New York, 16–27 April 2007)] para 10. (emphasis added).

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text can be found in such built-in interpretation clauses as (i) Article 4(1) of the UNIDROIT Convention on International Factoring of 1988, (ii) Article 6(1) of the UNIDROIT Convention on International Financial Leasing of 1989, (iii) Article 5 of the UN Convention on Independent Guarantees and Stand-by Letters of Credit of 1995, (iv) Article 3(1) of the UN Model Law on Electronic Commerce of 1996; (v) Article 3 of the Hamburg Rules; (vi) Article 7 of the UN Convention on the Limitation Period in the International Sale of Goods of 1974 in the version of the Protocol of 1990; and (vii) Article 7 of the CISG. The high repetitiveness of the term in conventions addressing different topics implies that although the specific contents of the ‘international character’ of a certain treaty may vary, the accentuation on the term can serve some values that are commonly expected for by those conventions — if there is a place where a bundle of common values of various conventions can be found at the international level, it must be somewhere centring the concept of international rule of law. 14.19 Having exhausted the VCLT means of treaty interpretation, I define the term ‘international character’ concerned as ‘the qualities distinctive to the Rotterdam Rules, which (i) are shaped by principles established by the Rules themselves and a broad context of the international legal system in which the Rules operate (instead of principles, concepts, rules, or cases unique to a domestic legal system) and (ii) embody the fundamental principles of international rule of law’.

(4) The ‘International Character’ of the Rotterdam Rules and the International Rule of Law 14.20 Based on the working definition of ‘international character’ produced above, I undertake to identify the ‘international character’ of the Rotterdam rules in this section.

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14.21 The Rotterdam Rules as a Treaty Governed by International Law. The first aspect of the international character of the Rotterdam Rules features their nature as a treaty. The VCLT defines ‘treaty’ as ‘an international agreement concluded between States in written form and governed by international law’.16 Sources of international law indicated by Article 38(1) of the Statute of the International Court of Justice (ICJ) include (1) international conventions, whether general or particular, establishing rules expressly recognised by the contesting states; (2) international custom, as evidence of a general practice accepted as law; (3) the general principles of law recognised by civilised nations; and (4) judicial decisions and the teachings of the most highly qualified publicists of the various nations.17 The largest possible legal framework in which the Rotterdam Rules can be interpreted should be, accordingly, within the four corners signaled by all the aforementioned constituents of international law. 14.22 The ‘systemic integration’ approach and the concept of ‘thick legal background’ derived from that approach, both of which are defined by the International Law Commission (ILC) in its report ‘Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law’ (the Fragmentation Report) released in 2006, can help further shrink the boundary line of the legal framework which directly governs the Rotterdam Rules. The Fragmentation Report characterises provisions of Article 31(3)(c) of the VCLT, which emphasises the

16

Vienna Convention on the Law of Treaties (Vienna, 23 May 1969) 1155 U.N.T.S. 331, entered into force 27 January 1980, art 2(1)(a) (emphasis added). 17 Subject to Art 59 of the ICJ Statute, judgments of the ICJ do not have binding effect except on parties of the disputes.

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significance of ‘relevant rules’ in treaty interpretation, as a ‘systemic integration’ approach, ‘whereby international obligations are interpreted by reference to their normative environment (“system”).’18 The rationale behind that approach is further elaborated below by the ILC in the Fragmentation Report by highlighting the ‘thick legal background’ of a treaty: All treaty provisions receive their force and validity from general law, and set up rights and obligations that exist alongside rights and obligations established by other treaty provisions and rules of customary international law. None of such rights or obligations has any intrinsic priority against the others. The question of their relationship can only be approached through a process of reasoning that makes them appear as parts of some coherent and meaningful whole. This is why ... they must also be “applied and interpreted against the background of the general principles of international law” ... In the activity of specialised treaty bodies, a thick legal background is constantly presumed in a noncontroversial way.19 14.23 The ‘international character’ of a treaty requests that it be interpreted in its ‘thick legal background’ defined above. For the Rotterdam Rules, their ‘thick legal background’ should embrace the pillars of extant maritime conventions — the International Convention for the

18

A/CN.4/L.682 [General Assembly, ILC, ‘Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law: Report of the Study Group of the International Law Commission, para 413]. 19 ibid, para 414 (emphasis added).

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Unification of Certain Rules of Law Relating to Bills of Lading of 1924 (the Hague Rules), the Protocol to Amend the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading 1968 (the HagueVisby Rules), and the Hamburg Rules — because the provisions of the Rotterdam Rules have deeply rooted in them. As Michael F. STURLEY points out, ‘[t]o the extent that generalisation is possible, the Rotterdam Rules draw largely on the Hague-Visby and Hamburg Rules, incorporating significant elements from each ... [B]ecause the Rotterdam Rules are built on existing foundations, very little about them is completely new’.20 Consequently, in spite of the denunciation provisions,21 the Rotterdam Rules can be interpreted according to pertinent provisions of extant maritime conventions. 14.24 Based on the sources of international law indicated by the ICJ Statute and the concept of ‘thick legal background’ provided by the ILC Fragmentation Report, the thick legal background of the Rotterdam Rules should also include the rules of customary international law and ‘general principles of law’ regarding the international carriage of goods. It is worthy of labouring the point here that the acknowledgement of the significance of ‘general principles of law’, which are generally read as ‘general principles of domestic law’,22 does not conflict with the meaning of international character, because, unlike legal principles unique to an domestic legal system — which has

20

Michael F. Sturley, ‘Transport Law for the Twenty-First Century: An Introduction to the Preparation, Philosophy, and Potential Impact of the Rotterdam Rules’ in Thomas (n 11) 1, 31. 21 Rotterdam Rules, art 89. 22 Currie (n9) 102.

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been excluded by the working definition of ‘international character’, the term ‘general principles of law’ refers to ‘general principles of law present in all of the principal legal systems, or main forms of civilisation, of the world’.23 In other words, the criterion of ‘generality’ has to be met before the ‘general principles of law’ are admitted into the ‘thick legal background’. 14.25 To sum up this subsection, being governed by international law, the Rotterdam Rules should be interpreted in their ‘thick legal background’, which is constructed by extant maritime conventions and the rules of customary international law and general principles of law regarding the international carriage of goods. 14.26 The Rotterdam Rules as Part of the International Legal System. The second aspect of the international character of the Rotterdam Rules is the Rules’ participation in the entire international legal system, especially in the ‘chains of treaties’ they situate. The concept of ‘chains of treaties’, as another derivative of the ‘systemic integration’ approach, are also proposed by the ILC in its Fragmentation Report. The ILC articulates in the report that ‘the principle of systemic integration goes further than merely restat[ing] the applicability of general international law in the operation of particular treaties. It points to a need to take into account the normative environment more widely’.24 The ILC further explains that the consideration of ‘wider’ normative environment requires a scrutiny of the so-called ‘chains’ of treaties, which ‘grapple with the same type of

23

ibid. Fragmentation Report (n 17) 209.

24

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problem at different levels or from particular (technical, geographical) points of view’.25 As the Rotterdam Rules are concerned, the ’chains’ ought to embrace at least two types of treaties — (i) those on single or multiple modes of transportation and (ii) those on international trade. I address the two groups in order in the following paragraphs of this subsection. 14.27 It would be misleading if the Rotterdam Rules are interpreted as adopting an ‘aggressive’ policy regarding their scope of application in the entire course of international carriage of goods, merely because one of the purposes of the Rules is specified as to promote ‘unification’ of pertinent international law. The attitude adopted by the Rules toward potential conflicts with conventions governing modes of transportation other than the maritime one is reflected by the provisions in Articles 26 and 82. Article 26 deals with loss of or damage to goods or delay in delivery that occurs before or after sea carriage; Article 82 focuses on the relationship between the Rotterdam Rules and international conventions governing the carriage of goods by other modes of transportation. The application of both articles can lead to the application of other conventions, as clarified by the following excerpt: Article 82 might lead other provisions of the Rotterdam Rules to become applicable as well when a competing convention yields. On the other hand, if the result of applying Article 82 is that the dispute is under another convention, the Rotterdam Rules

25

ibid 209–210.

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are not the basis for decision-making (and thus not Article 26 either).26 14.28 It seems apparent that in these two articles, harmonisation prevails over unification as a serving rationale. The interpretation of the Rotterdam Rules should not be guided solely by the purpose of unification; as part of the legal system, they are expected to pay due respect to other constituent parts of the system. 14.29 As for trade-related conventions, they are relevant because, on the one hand, the Preamble explicitly sets ‘furthering the progressive harmonisation and unification of the law of international trade’ and ‘reducing legal obstacles to the flow of international trade among all States’ as two fundamental purposes of the Rules;27 on the other hand, the Rotterdam Rules are reported as having adopted a so-called ‘trade’ approach, ‘in which the application of the Convention would turn on the type of trade in which the carrier was engaged’.28 International trade-related agreements, especially those covering (a) the rights and obligations of parties to trade contracts who are also parties to carriage contracts and (b) trade terms involving

26

Hannu Honda, ‘Matters Not Governed by This Convention’ in Alexander von Ziegler, Johan Schelin and Stefano Zunarelli (eds), The Rotterdam Rules 2008: Commentary to the United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (Kluwer Law International 2010) 349, 350–351. 27 G.A. Res. 63/122, U.N GAOR, 63d Sess., U.N. Doc. A/RES/63/122, Annex (2 February 2009). 28 Michael F. Sturley, Tomotaka Fujita and Gertjan van der Ziel, The Rotterdam Rules (Sweet & Maxwell 2010) 26. For more elaboration on the ‘trade approach’ adopted by the Rotterdam Rules, see pp 26–27.

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transportation of goods, are of significance in interpreting the Rotterdam Rules. 14.30 Thus, the international character of the Rotterdam Rules requires they be interpreted in the ‘chains of treaties’ they situate, which consist of both conventions on other modes of transportation and those on relevant trade issues. 14.31 Respect for ‘Sovereign freedom’ by the Rotterdam Rules. One of the fundamental principles of international rule of law as revealed by the array of its typical elements is the respect for the principles of sovereignty. The enforcement of that principle by the Rotterdam Rules, as evidence by their adoption of the ‘opt-in’ approach regarding jurisdiction and arbitration, also enriches the contents of their ‘international character’. 14.32 The allegiance to the international rule of law does not mean that the international legal system must wish for more international rules — or fewer freedoms — than there are. In the context of the Rotterdam Rules, to give more sovereign freedom to States is even recognised as a means to enhance the scope and speed of the acceptance of the provisions of the Rules on substantive issues. 14.33 Neither the Hague Rules nor the Hague-Visby Rules contain any provisions on the issue of jurisdiction or arbitration. The Hamburg Rules include provisions on both; the provisions therein restrict the effect of exclusive court or arbitration agreements.29 Unlike these provisions in the Hamburg Rules, those in the Rotterdam Rules

29

Yvonne Baatz, ‘Jurisdiction and Arbitration’ in Thomas, (n 11) 258, 258–259.

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do not automatically bind the parties unless the parties expressly opt in. Article 74 in Chapter 14 (Jurisdiction) of the Rotterdam Rules states that, ‘The provisions of this chapter shall bind only Contracting States that declare in accordance with article 9130 that they will be bound by them’. 14.34 Similar provisions can be found in Article 78 in Chapter 15 (Arbitration) of the Rules. The legal consequence of the two articles is that a national tribunal in a Contracting State that not expressively declared to be bound by the two chapters enjoys the discretion to apply the law it regards as appropriate, as elaborated in the following excerpt: A nation that simply ratifies the Convention without taking any further action, therefore, will not be bound by either chapter. A court in that nation will instead address these issues under the law that it would otherwise apply, which might be its own national law, the proper law of the contract, another international instrument, or even some combination of those sources.31 14.35 Actually, provisions on jurisdiction and arbitration were omitted from the original draft of the Rotterdam Rules because of a divergence of opinion on what such provisions should be.32 A compromise on the adoption of the ‘opt-in’ approach took place later on because ‘[i]t was hoped that this would encourage states to ratify the Rotterdam Rules,

30

A nation choosing to be bound by either chapter must make a formal declaration to that effect under Art 91 of the Rotterdam Rules. 31 Sturley, Fujita and van der Ziel (n 27) 329–330. 32 Baatz (n 28) 261.

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and to do so quickly’.33 Working Group III explained on its expectations for the ‘opt-in’ approach as follows: [I]t was agreed that ... the “opt-in” approach ... would allow the member States of that grouping to ratify the draft convention independently, thus allowing for greater speed and efficiency in the ratification process, and avoiding the possibility that the chapter on jurisdiction could become an obstacle to broad ratification.34 14.36 The ‘opt-in’ approach established by the Rotterdam Rules highlights one of the distinctions between the rule of law at the international level and that in the domestic settings — that is, the more apparent impacts of the principles of sovereignty on the pursuit of the rule of law at the international level. On the one hand, sovereign States enjoy the freedom to join the convention or not, which may become an obstacle to a comprehensive acceptance of the Rules; on the other hand, comme il faut respect for ‘sovereign freedom’ may contribute to a wider and speedier acceptance of the provisions of the Rules on substantive issues. 14.37 In brevity, the international character of the Rotterdam Rules also implies that the Rules be interpreted as giving due attention to the balance between the respect for ‘sovereign freedom’ and the consolidation of the international rule of law.

33 34

ibid. UNCITRAL, Report of Working Group III (Transport Law) on the Work of Its Twentieth Session (Vienna, 15–25 October 2007), U.N. Doc. A/CN.9/642 (2007), para 203.

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14.38 The Rotterdam Rules prevails over Regional and Domestic Laws of its Contracting States. The fourth aspect of the international character of the Rotterdam Rules is shaped by their efforts at fastening the privileged status of the Rules over pertinent regional regulations promulgated by regional economic integration organisations (especially the European Union (EU)). As indicated by the sources of international law prescribed by the ICJ Statute and the concept of treaty provided by the VCLT, regional regulations enacted by the EU can also be regarded as international law in the broad sense. The hierarchy between multilateral conventions and regional agreements invokes uncertainties and debates sometimes. 14.39 Not surprisingly again, none of the Hague Rules, the Hague-Visby Rules, or the Hamburg Rules addresses this issue. Article 93 of the Rotterdam Rules assumes the task. The essential question is what the legal status of such a regional organisation and its Member States is when the organisation ratifies or accedes to the Rules as a whole. The answer to that question can be inferred from the provisions of Article 93. Article 93(1) prescribes that: A regional economic integration organisation that is constituted by sovereign States and has competence over certain matters governed by this Convention may similarly sign, ratify, accept, approve or accede to this Convention. The regional economic integration organisation shall in that case have the rights and obligations of a Contracting States, to the extent that that organisation has competence over matters governed by this Convention. 14.40 Article 93(3) further explains that ‘[a]ny reference to a “Contracting State” or “Contracting States” in this

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Convention applies equally to a regional economic integration organisation when the context so requires’. In addition, Article 93(2) provides that when the number of States is relevant in the Rules, the regional economic integration organisation shall not count as a Contracting State in addition to its Member States that are Contracting States. These provisions can be naturally read to the effect that, when the number of States is not relevant, a regional organisation concerned is treated as a Contracting State like any other individual State. There are two layers of the legal implications of this simple and clear approach: (i) as an implied obligation assumed by all Contracting States, any regional regulations promulgated by the regional organisation concerned within its competency and any domestic regulations adopted by its Members States that are Contracting States within their authority should be made compatible with the Rotterdam Rules; and (ii) the Rotterdam Rules prevail unconditionally over pertinent regulations within the regional organisation concerned and its Member States involved where conflicts between them arise. 14.41 In summary, the international character of the Rotterdam Rules requires it be interpreted and applied as prevailing over regional rules and domestic laws in its Members States.

(5) Concluding Remarks 14.42 The concept of international rule of law, as representing an ideal legal order pursued by the international community, requests an expansion of functions of treaty interpretation from giving a precise definition of the meaning and scope of terms in a treaty to propagating fundamental principles of the international rule of law. Giving due regard to

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the ‘international character’ of the Rotterdam Rules is specified as one of the principles established by the built-in interpretation clause and is assumed to undertake the new function of treaty interpretation. The term ‘international character’ is defined, by the application of the general rules of treaty interpretation in the VCLT, as ‘the qualities distinctive to the Rotterdam Rules, which (i) are shaped by principles established by the Rules themselves and a broad context of the international legal system in which the Rules operate (instead of principles, concepts, rules, or cases unique to a domestic legal system) and (ii) embody the fundamental principles of international rule of law’. Based on this definition, four aspects of international character of the Rotterdam Rules that bear significance for prospective treaty interpretation are identified — that is, the Rotterdam Rules should be interpreted (a) in their ‘thick legal background’, which is constructed by extant maritime conventions and the rules of customary international law and general principles of law regarding the international carriage of goods; (b) in the ‘chains of treaties’ they situate, which consist of both conventions on other modes of transportation and those on relevant trade issues; (c) as giving due attention to the balance between the respect for ‘sovereign freedom’ and the consolidation of the international rule of law; and (d) as prevailing over regional rules and domestic laws of Contracting States.

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2013/10/21 10:56:00 AM

Index

A Abuses 3.03, 6.03, 6.28, 6.30 Access to justice 3.23, 9.03 Accountability 3.24, 9.18, 12.11, 14.04 Acquisition of Certain Area at Ayodhya Ordinance 1993 (India) 11.06 Actions 4.10, 8.21, 12.18, 12.26, 12.37, 12.45 Adjudication 6.01, 6.03, 6.34, 6.38, 14.08, 14.16 enforcement 6.17 Impartial 12.21 independent 12.21 judgment 6.17 Administrative Orders 6.04 Administrative purposes 10.06

Appellate courts 12.31 correct errors of law 12.31 new general legal rulings 12.31 Arbitrary State power 5.01 Arbitration 2.09, 2.20, 14.31, 14.33, 14.35 agreement 2.12–2.19 award 2.09, 2.13 award-debtor 2.09 seat 2.22, 2.23 A-religious 4.125 Arrest warrant 13.28 Austrian Civil Code 10.14 Austrian Civil Procedure 1.08, 10.01 Austrian Civil Procedure Code 10.01, 10.14

Administrative agencies 3.03

Austrian Constitutional Court 10.11, 10.16

Alcock v Chief Constable of the South Yorkshire Police 9.05, 9.07, 9.12–9.18

Austrian Federal Constitutional Act 10.01

Allah 7.23, 11.14 All-China Women’s Federation 6.07 A-moral 4.125

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Austrian Federal Ministry of Justice 13.23 Austrian Supreme Court 10.11, 10.14–10.17, 10.33, 10.34, 13.46

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Austrian Supreme Court Act 10.16 Autonomy 3.11, 5.13, 8.2 principle of private autonomy 10.10 Avoid anarchy or chaos 14.06 Avoidance of arbitrariness 14.04 arbitrary will or judgment 14.06 rules at will 14.06 Award judgment debtor 2.03

Buddhism 7.03, 7.16 Burden of proof 4.86, 6.06

C Caning sentence 7.19 Canonical sanctions 4.17 censures penalties 4.17 expiatory penalties 4.17 medical penalties 4.17 Capitalist ideology 4.92

B

Catholic church 4.07, 4.17, 4.105, 7.23

Backlog of cases 3.25

Catholic penal process 4.03

Battered Women 6.03, 6.04, 6.05

Causal nexus 4.29

Best interest doctrine 6.36

Central authority 13.07

Best interests of the child 13.03, 13.26, 13.29 enforcement procedure 13.43, 13.57 measures of provisional care 13.43

Central Bureau of Investigation 3.11

Beyond reasonable doubt 4.86 Bias 5.20, 10.26, 14.07 Bijoe Emmanneul v State of Kerala 11.10 Jehovah’s witness 11.10 national anthem 11.10 silence 11.10 Bills 3.08, 8.21 Book of Deuteronomy 4.06 British colonial rule 7.04, 7.07 Brussels IIa 13.15 article 60 13.15

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Certainty 4.02, 10.04 Chains of treaties 14.26, 14.30, 14.42 Checks and balances 3.08, 12.09 Child abduction 13.03, 13.15, 13.3, 13.31, 13.34 Child maintenance 13.26, 13.28 Child Protection Convention 1961 13.13 Child Protection Convention 1996 13.13 article 51 13.13 China’s Election Law 8.07 1982 amendment 8.09 1986 amendment 8.09 1987 Election Law 8.08

2013/10/23 9:35:51 AM

Index



1995 amendment 8.09 2004 amendment 8.09 2010 amendment 8.09

China’s national pilot program for protecting women against domestic violence 6.08, 6.14, 6.38 Chinese Civil Procedure Law 6.16 Chinese civil trial 6.15 confrontational 6.30 court discussion 6.15 court investigation 6.15 court mediation 6.15 cross-examination 6.18 decision annoucement 6.15 evidence 6.18 judge-centered 6.18 out-of-court investigations 6.18 Christian 7.24 Jerusalem 7.24 pilgrimage 7.24 Civil and political rights 3.04, 7.14 Civil cases 6.01 mediation 6.01 withdrawal 6.01 Civil court system 3.03 Civil law 4.05, 4.53, 9.02, 10.1 Classical Theory 12.09 Code of Canon Law 4.09, 4.103, 4.109 external 4.105 internal 4.105

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329

Codification 14.10 customary international law 14.10 Commandments 4.03 abortion 4.68 apostasy 4.40 biagamy 4.60 blasphemy 4.43 coveting neighbour’s goods 4.91 fifth 4.03, 4.62, 4.63 first 4.03, 4.38, 4.39, 4.90 fornication 4.56 fourth 4.03, 4.49, 4.50, 4.53, 4.114 fraud 4.94 heresy 4.40 homicide 4.71 homosexuality 4.61 intention to cause grievous bodily injury 4.74 intention to murder 4.73 knowledge that death may ensue 4.77 Love of God 4.04 lust 4.56 marriage 4.56 murder 4.63 ninth 4.03, 4.55–4.58, 4.112– 4.119 perjury 4.43 pornography 4.56 rape 4.59 right to private property 4.90 schism 4.40 second 4.03, 4.41, 4.48, 4.112 seventh 4.03, 4.90–4.95

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sex 4.56 sixth 4.03, 4.55, 4.56, 4.58 suicide 4.66 tenth 4.03 theft 4.94 third 4.03, 4.45, 4.47, 4.112 unjust appropriation 4.91 unjust damage 4.94 unnatural offences 4.61

Commissioner of Police v Acharya J. Avadhutananda 11.11 constitutional protection 11.11 practices of religion 11.11 Common intentions 5.14, 5.26, 5.27, 5.28 Communist Party of China 1.08, 6.01, 8.01 Community Service Orders 4.33, 7.19 Compensation 2.09, 3.17, 6.04, 7.38, 9.03, 12.36 Conciliation 4.09, 6.03 Condemnation of governments 9.02 Confucian belief 6.05 Consensus 2.03, 3.0, 5.05 blocking 5.17 consensus approach 5.17 deference to real power structure 5.17 mutual consent 5.14 principle 5.10 state consent 5.10 Constitution 1.09, 3.01, 3.03, 3.1, 3.2, 8.02

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Austrian Constitutional law 10.02, 10.09 China’s Constitution 1982 8.04, 8.05, 8.06 China’s Constitution 1999 amendments 8.04, 11.01 China’s Constitution 2004 amendments 8.04 constitutional changes 7.29, 12.02, 12.06, 12.10, 12.47 constitutional rule 7.01 constitutional safeguards 12.03, 12.10, 12.16 constitutional structure 8.03 eternal clauses 12.49 guarantees 7.24, 11.08 India’s Constitution 3.03, 3.06, 3.08, 3.22, 11.07, 11.08 limitations 3.06 Malaysia’s Constitution 7.02, 7.05, 7.17, 7.35, 7.39 Merdeka Constitution 7.06 principles/ values 8.03 procedure 8.03 secular 7.35

Constitutional Reform Act 2005 (UK) 12.10 Contact rights 13.05, 13.38, 13.40–13.44, 13.47 Conti 5.18 Contract 2.05, 2.19, 4.94, 5.04, 14.29 contracting process 5.11 contracting states 13.03, 14.33, 14.34, 14.39 contractual obligations 5.04

2013/10/23 9:35:51 AM

Index

Contractarian deficit 5.03 consents 5.28 deficit 5.03 justification 5.22



Convention governing the guardianship of minors 1902 13.13

Custom 7.14, 11.22, 11.29, 12.02, 14.21

Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea 1.07, 14.01 article 2 14.16 Conventions 1.07, 12.02 , 13.02, 13.13, 13.15, 13.22 Corporate Capacity 2.06, 2.07 Corruption 2.11, 2.26, 3.03, 3.11, 3.24, 3.27 Court congestion 3.03 Crime 4.10 actus reus 4.26 mens rea 4.26 Criminal cases 3.25, 6.40, 10.32 court 10.22, 10.28, 10.34 criminologists 4.13 justice 4.104 liability 4.03, 4.08, 4.26 trial 4.02, 4.11 Cultural Revolution 8.07 Custody Convention 1980 13.14, 13.15 Custody rights 13.03, 13.17, 13.19, 13.29, 13.4 breach 13.05, 13.5 habitual residence 13.05, 13.06, 13.10, 13.5, 13.52

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331

joint custody 13.48 provisional custody 13.56, 13.57 sole custodian 13.48

D Dalico doctrine 2.19 Dallah Real Estate & Tourism Holding Co v. Pakistan 2.12, 2.27 De novo review 2.06 Death sentence 3.18 Decalogue 1.09, 4.02, 4.06–4.08, 4.50, 4.103 Decision making by Consensus 5.03, 5.08, 5.10, 5.14, 5.19, 5.20 censorship 5.16 legitimacy 5.16 marginalization of the European Commission 5.16 possibility of lagging implementation 5.16 sloppy decision-making 5.16 truncation 5.16 Defences 4.03, 4.20, 4.22, 4.34, 4.35, 4.11 duress 4.21, 4.35, 4.11 error 4.21 ignorance 4.21, 4.22 insanity 4.21, 4.37, 4.110 minority 4.21 self-defence 4.21, 4.111

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Defences against murder baby under 12 months 4.79 killing in a sudden fight 4.79 public officer or one who aids a public officer 4.79 right of private defence 4.79 sudden and grave provocation 4.79 Delegated legislation 12.22, 12.23, 12.24 Delhi Declaration 1959 3.04 Delivery of justice 6.03 Democracy 8.11, 8.18, 10.03 administration 8.18 decision-making 8.18 election 8.18 electoral system 8.18 supervision 8.18 parliamentary democracy 7.05 institutions 3.27 legitimacy 5.06 Deterrence Model 4.14 Diplomatic relations 7.24 Directive principles 3.14, 3.19 Disciplinary matters 6.06, 12.12 Discrimination 3.03, 3.14, 3.16, 3.21, 10.03 Disenfranchisement 5.03 , 5.3 Dishonesty 4.10, 4.102, 4.31 Displacement of tribal population 3.21 Dispute Resolution 6.02 amicable 13.23

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dispute settlement mechanism 5.02, 5.03, 5.07, 5.26 dispute settlement understanding 5.08

Divorce 6.03, 6.04, 6.19, 6.30, 12.33 child custody 6.25, 6.28, 6.30, 13.15 child support 6.31, 6.32 communal property 6.31 divorce petitions 6.09, 6.20, 6.30, 6.38 divorce trials 6.03, 6.11 extramarital affairs 6.31 marital property 6.25, 6.30 no-fault rule 6.30 tape recording 6.12 Domestic disputes 1.08 Domestic Law 1.06, 1.08, 5.11, 13.32, 13.33, 14.08 Domestic legal system 5.27, 14.11, 14.19, 14.42 Domestic Violence 1.08, 4.54, 6.03–6.40 abuse 4.54, 6.03, 6.08, 6.09, 6.22, 6.27 abusive husbands 6.25 family trouble 6.05 in China 6.03 marginalization 1.08, 6.03, 6.37 marriage 4.17, 4.56, 4.117, 6.20, 12.38, 13.28 medical records 6.25 police report 6.06, 6.25, 6.31, 6.33

2013/10/23 9:35:51 AM

Index



Prevention of Domestic Violence Act (Sri Lanka) 4.54 rural wife 6.20 screening system 6.39 spousal quarrels 6.05 threat 3.27, 4.02, 4.48, 6.07, 6.22, 7.20

Due process 3.18, 5.08, 14.06 Dutch Court 2.09, 2.11 Duty of care 9.06, 9.07, 9.10, 9.13 aftermath test 9.07, 9.08, 9.1 reasonable foreseeability 9.07, 9.07

E Economic development 8.19 Economic policy 5.04



geographical election 8.16 indirect election 8.07, 8.10, 8.12 periodic 3.10 pre-election 8.07, 8.08, 8.10, 8.11, 8.12 pre-election procedure 8.10, 8.11 simple plurality of voters 8.07 universal 8.15

Election fraud 8.12 administrative penalties 8.12 penalties on illegal election activities 8.12 punitive measures 8.12 Election procedure 8.13 equal 8.13 fair 8.13 transparency 8.13

Economic reform 8.08, 8.17

Electoral reform 8.02, 8.16, 8.26, 8.27

Economic rights 3.19, 9.03

Electoral system 8.01, 8.18

Efficient rulings 9.01

Encroachment 14.06

Election 3.10, 3.13, 7.33, 7.34, 8.02, 8.07 confidential 8.15 democratic elections 8.10, 8.14, 8.15, 8.17 deputies to the people’s congress 8.06, 8.15 direct election 8.07, 8.12, 8.14, 8.15, 8.21 election organizing committees 8.22 equal 8.13, 8.15

Enforcement 3.03, 6.17, 12.17, 12.18, 12.20, 13.29

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333

English Arbitration Act 1996 2.13, 2.17 English Court of Appeal 2.03, 2.04, 2.06, 2.08, 2.16 English system of government 12.08 Equality 5.05, 10.03 equal protection of the laws 3.15

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equality before the law 3.04, 3.14, 3.16, 3.20, 14.04 gender equality 6.04

Equity 1.08, 5.17, 9.18 European Convention on Human Rights 2.06, 4.02, 10.02 Article 6 2.06, 2.07, 4.02, 12.14 Article 8 13.27 Grand Chamber 13.28 grave risks exception 13.28 independent and impartial tribunal 12.14 Rule 39 Rules of Court 13.27 violation of family life 13.27 European Union 1.07, 5.16, 10.03, 13.15, 14.38 member states 13.32 Exculpation 4.22, 4.36 Execution of judgments 12.20 Executive 3.05 arbitrary 3.16 compartmentalisation 7.07 interference 12.28 power 3.06 unconstitutional 3.16 Expert evidence 2.21

Family court judges 6.14 Family Law 6.03, 6.39, 12.38 Federal Council 10.04 Federal laws 7.12 Federal principle 10.04 Federal System of government 3.06 Feudal system 5.24 Finality 2.04, 2.08, 2.25, 2.26, 7.26, 12.18 Foreign judgment 1.07, 2.04, 2.06, 2.07, 2.08 Foreign arbitral awards 1.07, 2.02, 2.03 Freedom 10.03 Freedom of press 3.10 Freedom of religion 2.02, 3.14, 3.15, 11.08 practice 7.12, 7.16, 7.24, 7.28, 11.08 profess 7.24, 7.28, 11.08 Freedom of speech 2.02, 3.03, 3.10, 3.14, 3.21 Freedom of conscience 11.08 Freedom to vote 8.16 French arbitral tribunal 2.12, 2.16

F Fairness 1.08, 3.13, 3.16, 6.16, 9.02, 9.04 due process 3.18, 5.08, 14.06 natural justice 14.06 political process 3.13

15_The Rule of Law_index.indd 334

French Code of Civil Procedure 2.19 French courts 2.18 Fundamental Freedoms 1.09, 7.01, 13.09, 14.06 Fundamental rights 3.05, 3.09, 3.11, 3.14, 3.19, 3.23

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Index

G



judicial organs, 8.04



legislative organs 8.04, 12.04, 12.08, 12.22, 12.58

G20 group 3.20 General Agreement on Tariff and Trade 5.02 binding 5.07 blocking 5.07 council 5.07 objections to consensus 5.07 panel 5.08 panel report 5.07 General defences in Sri Lankan law acts done in good faith 4.35 acts done in private defence 4.35 acts done under duress 4.35 acts of children 4.35 acts of judicial officers 4.35 insanity 4.35 intoxicated 4.35 mistake of facts 4.35 Good Faith 2.15, 4.83, 4.85, 4.86, 14.12, 14.13 Good of the public 12.35 Governance 3.13 legitimacy 5.12 transparency 3.13 Governing instrument 7.05, 7.17 Governing trade 5.04 Government framework 5.12 parliamentary form 3.08

Government powers 3.05, 3.10

H Hague Abduction Convention 1980 1.07, 13.02 Hague Abduction Convention 1981 article 4 13.36 speedy return of the child 13.26 Hague Abduction Convention 1982 article 19 13.35 Hague Abduction Convention 1983 article 21 13.36 Hague Abduction Convention 1984 article 13 13.37 Hague Conference 13.22 Hague Rules 14.23, 14.33, 14.39 Hague-Visby Rules 14.23, 14.33, 14.39 Hamburg Rules 14.16 article 3 14.16 Hard law 5.19

Government bodies 8.04

Health laws 4.06



Henry Maine 5.24

executive organs 7.07, 8.04, 12.03, 12.04, 12.08, 12.10

15_The Rule of Law_index.indd 335

335

Hereditary ruler 7.04

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336

The Rule of Law: A Comparative Perspective

Hindu 7.03, 7.20, 7.30, 11.01 avatar 11.14 Ayodhya 11.21 God Vishnu 11.14 incarnation 11.16 Lord Ram 11.14 monist 11.14 ultimate supreme god 11.14 House of Lords 9.07, 9.10, 9.13, 9.16, 12.10 Judicial Committee 9.10, 12.10

Individual rights 3.12, 5.01 Inherent jurisdiction 5.08 Institution 3.27, 13.08, 14.01, 14.04, 14.07 devises 8.03 procedures 8.03 Integrity 4.55, 9.03, 11.31 of goods 9.03 of land 9.03 of persons 9.03 Intellectual property 5.08

Human dignity 1.10, 3.17, 10.03, 13.09, 14.06 International commitments 14.06

Interim injunction 11.03

Human rights 3.05, 5.02, 6.03, 8.04, 8.18, 9.01 Human Rights Commission 4.02

International character 14.01, 14.09, 14.12

I Immanuel Kant 4.13 Immediate injury 9.09 Impeach 3.08, 3.22, 3.24 impeachment motions 3.22 Independent courts 9.01 Independent judiciary 3.03, 3.05, 3.22, 3.24 India’s Civil Procedure Code 11.17 India’s Code of Criminal Procedure 11.03, 12.39 India’s Evidence Act 11.19

15_The Rule of Law_index.indd 336

Internalisation 3.27 International carriage of goods by sea 14.14

International Commission of Jurists 3.04 International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading of 1924 14.23 International Covenant on Civil and Political Rights 4.02, 8.04 International Covenant on Economic, Social and Cultural Rights 8.04 International Hague Network of Judges 8.04 International human rights norms 13.24 International judicial institution 14.01, 14.06

2013/10/23 9:35:51 AM

Index

International Law Commission 14.22 systemic integration 14.22 thick legal background 14.22 International obligations 14.06, 14.22 International organizations 1.07, 5.07, 14.03, 14.06 International rule of law 1.07, 5.02 consolidation 14.42 International trade 5.02, 5.18, 5.27, 5.29, 14.12, 14.14

Judges absence of bias or prejudice 10.26 appointment of judges 10.32 Austrian Judicature Act 10.27 general irremovability 10.24 impartiality 10.19, 10.23, 10.26, 10.27, 14.06, 14.07 independence 2.26, 10.19, 10.20, 10.22 Law governing the Service of the Judiciary 10.24 without undue influence 10.24

International trading regulations 5.09

Judgment by default 2.05

International treaty 5.04, 5.11, 5.25

Judicial decisions 3.26, 4.25, 5.25, 9.01, 10.12, 10.17 applied prospectively 12.28, 12.57 applied retrospectively 12.16 retroactive reversals 12.16, 12.19

Interpretation Clause 14.01, 14.12, 14.16, 14.42 Irrationality 7.38 Islam 1.09, 7.02, 7.17, 11.14 Islamic state 7.01 Islamisation 1.09, 7.01, 7.17, 7.35, 7.39 mosque 1.09, 7.36, 11.01, 11.14, 11.22

Judgment creditor 2.05

Jesus Christ 4.04, 4.42

Judicial independence constitutional protection 12.03, 12.16 informal elements 12.02, 12.03 mutual respect between the branches of the government 12.04, 12.58 refrain frustrate judicial remedies 12.26 written law elements 12.03

Judeo- Christian tradition 4.04

Judicial Interpretation 1.07, 3.18

Issue estoppel 2.03, 2.09, 2.1, 2.11, 2.16, 2.23

J

15_The Rule of Law_index.indd 337

337

2013/10/23 9:35:51 AM

338

The Rule of Law: A Comparative Perspective

Judicial mediation 1.08, 6.04 in-trial judicial mediation 6.09 judges 6.02 litigants 6.02 mediated settlement 6.16 negotiate 6.30 promoting social harmony 6.01 proposed solution 6.29 resolving social conflicts 6.01 sacrifice legal rights 6.02 voluntarily performed 6.01 zero adjudication 6.16

K

Judicial Reforms 6.01, 6.16

Law on Jurisdiction over Noncontentious Matters 13.32 Regulation of Custody and Personal Contacts in the Frame of non-contentious jurisdiction 13.34

Judicial review 6.01, 11.28, 12.06, 12.48, 12.50, 12.53 moderate approach 12.60 totalist approach 12.48, 12.49, 12.51, 12.52, 12.56 unconstitutionality 12.06, 12.48, 12.6 Judiciary 3.03, 3.05, 3.09, 3.20, 3.22, 3.24 accountability 3.24, 9.18, 12.11, 14.04 compartmentalisation 7.07 Jurisdiction 2.18 Jurisprudence 2.06, 2.07, 3.17, 4.122, 5.02, 5.24 Justice 1.08, 9.02, 10.07 delayed 3.25 denied 3.25 recourse 5.02, 9.03

15_The Rule of Law_index.indd 338

Kiev Commercial Court 2.05, 2.07, 10.03 Kuala Lumpur High Court 7.38

L Law and order 3.21, 3.27, 9.01, 11.02 Law and Religion 1.06, 1.09, 1.1 Law of Christ 4.05 Law of nations 14.02, 14.03

Legal Certainty 2.04, 2.06, 10.22, 14.04, 14.14 Legal controversy 7.13, 7.35 Legal justification 9.01 Legal positivists 4.14 Legal system 5.13, 6.02, 14.01, 14.03, 14.06 China 4.02, 6.01 India 11.33 Sri Lankan 4.02, 4.119 Legislation 3.16, 4.24, 6.04, 6.07, 7.06, 8.20 arbitrary 3.06, 3.16 central legislature 3.06 compartmentalisation 7.07 competence to legislate 3.07

2013/10/23 9:35:51 AM

Index



interference 12.28 state legislatures 3.06, 3.10, 7.06 unconstitutional 3.05

Legislature intervention 12.05 Legitimacy 5.03, 5.13, 12.31 legitimate international governance 5.12 legitimate political society 5.12 democratic institutions 3.13 governance 5.12

Mandatory detention 7.28 Maritime legal system 14.01, 14.16 Marriage Law 6.04, 6.32 May Thirteenth communal riots 1969 7.32

Legitimate sovereign power 12.57

Mediation 6.38, 6.39, 6.4, 11.32, 12.44, 13.23 administrative preference 6.38 community-based 6.37 court-based 13.23 cross-border mediated agreements 13.23 screening system 6.39

Liberty 3.14, 3.17, 3.2, 12.02

Meeting of minds 5.11

Lord Chancellor 12.10, 12.11, 12.12 the Concordat 12.10

Merchant International Co Ltd v Natsionalna Aktsionerna Kompaniia Naftogaz Ukrainy 2.03, 2.04, 2.25

Legitimate power 12.28

Lord Chief Justice 12.10, 12.11, 12.12 the Concordat 12.12 Lord Ram 11.02, 11.03, 11.05, 11.15 Ram temple 11.03

M Majority 5.05, 5.21, 7.28, 7.34, 8.12, 11.01 fair play 11.01 Malay 7.04, 7.14 Malaysia National Registration Department 7.25 regulations 7.25

15_The Rule of Law_index.indd 339

339

Migrant workers 6.10 Ministry of Justice 12.11, 12.12, 13.23, 13.32 Minorities 3.14, 5.16, 7.29, 11.01 faith 11.01 justice 11.01 Miscarriage 4.85, 4.86 Mitigating circumstance 4.22 diminished responsibility 4.22 drunkenness 4.22, 4.111 error 4.22 grave fear 4.22 imperfect reason 4.22 provocation 4.22, 4.79, 4.80, 4.81, 4.11

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340

The Rule of Law: A Comparative Perspective



right to self-defence 4.22, 4.111

National Judicial Commission 3.24

Montesquieu 12.08

National People’s Congress 6.04, 8.01, 8.12 presidium 6.04

Montreal Declaration 12.27, 12.29

National People’s Congress Standing Committee 8.01

Moral conscience 4.07

Natural law 4.07, 5.06

Moral policing 7.19

Ne exeat right 13.18, 13.19 ne exeat order 13.18

Monarch 4.104 monarchical authority 5.24

Morality 6.35, 9.05 Mosque 11.05 demolished 11.03 Movable property 4.96, 4.97, 4.98, 4.102 Mt. Scopus International Standards of Judicial Independence 12.13 Multilateral Treaty 5.04 continuing treaties 5.25 frameworks 5.25 Multi-party democracy 3.10 Multi-party system 8.17 Muslim Women (Protection of Rights on Divorce) Act 1986 (India) 12.39 Muslims 7.03, 7.15, 7.2, 7.21, 7.24 Muslim faith 7.15

Negative Consensus decision 5.08 Neighbour principle 9.04, 9.13 Donoghue v Stevenson 9.04 New Delhi Code of Minimum Standards of Judicial Independence 12.27 New judicial initiatives 6.13 New Testament 4.04, 4.93 New York Convention 1958 2.03, 2.12, 2.13, 2.17, 2.18, 2.21 Non-discrimination 10.03 Non-preclusive approach 2.03 Normative regime 14.06

O Obligations 4.09, 4.44, 4.46, 4.47, 4.66, 5.07

N

Observance of good faith 14.12

National Fatwa Council of Malaysia 7.21 fatwa 7.21

Offences against property 4.95

15_The Rule of Law_index.indd 340

Offences relating to documents, property, property marks,

2013/10/23 9:35:51 AM

Index

currency notes, bank notes 4.95



Old Testament 4.05, 4.06, 4.93



Omissions 4.10, 6.03, 9.04, 12.16, 12.19 erasure 4.10 Opt-in approach 14.31, 14.35, 14.36 Order and Security 3.03 civil conflict 3.03 crime 3.03 political violence 3.03

341

deputies to the people’s congress 8.06, 8.15 municipal 8.06 national 8.06 provincial 8.06 township 8.06

People’s right to election 8.07 Personal liberty 3.14, 3.17 Personal tort 6.40 Petitions 6.07, 6.09, 6.16, 6.30, 6.38 Physical or psychological harm 13.10 Playing field 5.10, 5.18

P

Pluralism 10.03

Pacta sunt servanda 14.06

Police Commissioner 12.17

Pakistan government 2.12, 2.13 2.14 2.19

Police discrimination 3.03

Pan-Malaysian Islamic Party 7.36 Paralysis 5.03, 5.07, 5.20, 5.22, 5.30 Parliamentary system 8.17 Participation in decision-making 14.04 Penal Sanctions 4.12, 4.17, 4.118 Penalty 3.09, 4.10, 4.11, 4.17, 4.22, 4.43

Political agenda 7.17, 11.05 Political coalition 7.40 Political parties 8.07, 8.21, 8.22, 11.05 Political power 5.01 Political processes 7.02 Political rights 3.04, 5.24, 8.03 Political system reform 8.16, 8.17 Positivists 4.14, 5.06

Pentateuch 4.06

Post-accident treatment 9.14

People’s Congress Elections 1.08, 8.17, 8.24, 8.26

Post-judgment independence 12.05, 12.16

People’s congress system 8.06, 8.08 county 6.03, 6.11, 6.14, 8.06, 8.14, 8.16

Poverty 3.20, 3.27

15_The Rule of Law_index.indd 341

Power of pardon 12.16 Predictability 3.05, 4.02, 9.01, 14.06, 14.14

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342

The Rule of Law: A Comparative Perspective

Pre-emption of the enforcement 12.18 executive branch 12.12, 12.16, 12.18, 12.19, 12.20 frustrate judicial decisiosn 12.18 violation of rule of law 12.18 Prerogative power 4.25 Preserve human civilization 14.06 Preserves human rights 8.04 President 3.08, 3.22, 6.01, 6.16, 10.32, 11.07 Preventive Model 4.14 Primary victims 9.09 Principle of finality of judgments 12.18 Principle of Legality 1.07, 2.02, 2.06 Principle of private autonomy 10.1 Principle of reasonableness 3.16 Principle of secret ballot 8.07 Principles of supremacy of law 14.04 Procedural and legal transparency 14.04 Prohibition of discrimination 3.14 Prompt return of a child 13.04 Protection against arrest and unlawful detention 3.14 Protection against double jeopardy 3.14

15_The Rule of Law_index.indd 342

Protection of interests of minorities 3.14 Protection orders 6.08 Protocol to Amend the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading 1968 14.23 Provincial congresses 8.16 Psychiatric illness 2.02, 9.02, 9.06, 9.07, 9.11, 9.15 Psychiatric injury 9.07, 9.08, 9.15 closeness of ties 9.07, 9.11 means 9.07, 9.16 proximity 9.06, 9.07, 9.13, 9.14, 9.17 Public administration 10.06, 10.08, 10.09, 10.1 Public Interest 3.23, 7.38, 12.28, 12.45 Public international law 5.12, 5.17 Public policy doctrine 2.10 Dutch 2.10 English 2.03 Punishments 3.09, 4.32, 4.104, 4.109, 7.28 community service in lieu of imprisonment and fines 4.11 4.33 community service orders 4.33 death 3.18, 3.2, 4.18, 4.32 fine 4.32, 4.59, 4.85, 4.109, 6.08, 7.19

2013/10/23 9:35:51 AM

Index



forfeiture of property 4.320 physical 4.11 rigorous 4.32 simple imprisonment 4.32 spiritual 4.11, 4.33 suspension of sentences 4.33 whipping 4.32

343

Restraint Orders 6.04 Retributive model 4.13 Retroactive 3.09, 12.16, 12.29

Q

Retroactive legislation 12.30 emergency regulations with publication 12.30 executive privilege 12.30 land acquisition 12.30 state immunity 12.30, 12.33 war damages 12.13, 12.37

Quasi-contract 5.24

Reverse consensus principle 5.21

Quod omnes tanget 5.12

Right of access 13.06 Right of visitation 13.28

R Realists 5.16, 5.19 Reasonable man’s standards 9.04 Referendum 10.04 Reformation 5.24 Reformative Model 4.15 Rehabilitation centre 7.28 Relativism 6.35 Religions of the Book 4.04 Religious belief 11.11, 11.33 ceremonial laws 4.05 doctrine 7.12 faith 11.08, 11.10, 11.2, 11.28, 11.33 historicity 11.28 violence 11.30 Republican principle 10.04 Reputations 9.03 Restorative Justice Theory 4.16

15_The Rule of Law_index.indd 343

Right to education 3.14, 3.17 free and compulsory 3.17 Right to Information Act 2005 (India) 3.13 Right to life 3.14, 3.17, 4.68 Right to personal liberty 3.17 Right to speedy justice 3.25 Right to worship 11.08 Rights of individuals 3.04, 14.06 Rights to compensation 12.36 Rights to health 3.17 Rights to livelihood 3.17 Ritual laws 4.06 Robbery 4.95 Rotterdam Rules 1.07, 14.09, 14.10–14.43 article 2 14.01, 14.12 Rule of Law 5.04, 11.33 compromising 3.05 development 3.04, 5.29 formal conceptions 3.05

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344

The Rule of Law: A Comparative Perspective



goverance 3.05 justice 3.05 rights 3.04 substantive conceptions 3.04 thick versions 3.04 thin versions 1.06

Rule of Law Index of the World Justice Project 2012 3.03 Rule of power 5.04 Rules-based WTO regime 5.04







S Seat of arbitration 2.22 Secondary victims 9.06–9.10, 9.13, 9.15 participant 9.10 passive spectator 9.06 Secretary of State for Justice 12.12 Secularism 11.02 secular 7.02, 7.37 secular state 7.15, 7.35, 7.40 Separation of powers 1.07, 1.08, 3.08, 10.04, 10.12, 10.17 Separation of siblings 13.52 Services trade interests 5.08 Set aside 2.03, 2.04, 2.06, 2.07 Sexual harassment 3.20, 7.20 Shared custody 13.06, 13.56 Shetreet principles 12.03, 12.16 assignment schedule 12.03 diverting cases 12.03 improve the terms of judicial service 12.03

15_The Rule of Law_index.indd 344



independent constitutional or statutory officers of the state 12.03 ordinary-judge principle 12.03 post-decisional independence of the judgment 12.03 predetermined internal plan 12.03 prohibition against intentionally stripping courts of their jurisdiction 12.03 rule against ad hoc tribunals 12.03 standard-judge principles 12.03

Shock 9.06, 9.07, 9.10, 9.13, 9.15, 9.17 Sisters in Islam 7.36 Social and political climate 12.02 Social contract theory 5.10, 5.11, 5.13, 5.23–5.28 international social contract 5.13 5.26 Original Compact 5.24, 5.26, 5.27, 5.28 social development 5.24 state of civil society 5.24 5.25 state of nature 5.24, 5.25 two-tiered social contract 5.13 Social deterrent 9.03 Social harmony 4.11, 6.01, 6.05, 6.16 Social integration 4.11, 13.50 Social security 9.03

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Index

Socialist country 8.04

Supranational laws 14.02

Socialist democracy 8.01

Supremacy of law 3.04, 14.04, 14.05

Socialist democratic political system reform 8.17

Supreme Court of Canada 12.34

Socio-economic inequalities 3.27

Supreme Court of India 11.07

Solidarity 10.03

Supreme Court of the United Kingdom 2.03, 2.12, 2.22, 2.27, 12.10 reverse decisions 12.10

Sovereign equality principle 5.05 Sovereign freedom 14.31, 14.32, 14.36, 14.37, 14.42 Sri Lankan Criminal Law, 1.09, 4.09

Supreme Court of Ukraine 2.05 Supreme People’s Court 6.01

State 5.01, 7.02 assembly 11.06 autonomy 5.13 courts 10.11 policy 3.19

Swiss Federal Court 13.28

Status quo ante 13.52

T

Statute of the International Court of Justice 14.21 article 38(1) 14.21 international conventions 13.02, 14.18, 14.21, 14.27 international customs 14.21 judicial decisions 14.06, 14.21 teachings of the most highly qualified publicists 14.21 the general principles of law 14.21

The Convention on the Civil Aspects of International Child Abduction (the Abduction Convention) 1983 13.03

Symbolic justice 3.20

The United Kingdom Supreme Court 2.09, 2.14 Commercial Court 2.13 Supreme Court 7.06 Tiananmen Square 8.17 Tolerance 3.21, 8.26, 10.03

Strong aversion 13.52

Tort Law 1.08, 9.02, 9.03, 9.05 negligence 9.02 nuisance 9.02 statutory tort 9.02 trespass 9.01

Sultan 7.04, 7.08, 7.19

Trade policy 5.08

Superior authority 5.13

Trading power 5.03, 5.18, 5.20, 5.22, 5.29

Strasbourg jurisprudence 2.06, 2.07

Supplementary enforcement 2.09

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345

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346

The Rule of Law: A Comparative Perspective

Transnational 2.19, 2.20, 2.22, 2.25, 2.26, 2.27

Uniform civil code 12.38, 12.40, 14.42, 14.43

Trauma 9.15

United Malays National Organisation 7.36

Treaty interpretation 5.14, 5.26, 14.08, 14.1, 14.11, 14.22 Treaty on European Union 10.03

United Nations 9.02, 14.01

Trial court judgments 6.06

United Nations Commission on International Trade Law 14.18

U



Ukrainian Supreme Court 2.05, 2.07

United Nations Convention on Contracts for the International Sale of Goods of 1980 14.16

UN Charter 5.13 UN Convention on Independent Guarantees and Stand-by Letters of Credit of 1995 14.18

article 5 14.18

UN Convention on the Limitation Period in the International Sale of Goods of 1974 in the version of the Protocol of 1991 14.18 article 7 14.18 UN Model Law on Electronic Commerce of 1996 14.18 article 3 14.18 UNIDROIT Convention on International Factoring of 1988 14.18 article 4 14.18 UNIDROIT Convention on International Financial Leasing of 1989 14.18 article 6 14.18

15_The Rule of Law_index.indd 346

working group II 14.17

United Nations Convention on Contracts for the International Sale of Goods of 1981 14.16 United Nations Convention on the Carriage of Goods by Sea of 1979 14.16 article 7 14.16 United Nation’s Development Programme’s Human Development Index article 3 3.20 Unity 11.31 Universal Declaration on Human Rights 5.02 Upper House of Parliament 12.10 Urbanization 8.19 Usage 7.14 Utilitarian theory 4.14 Utopian 12.08

2013/10/23 9:35:52 AM

Index

V

World War II 7.02, 5.13

Veto power 5.06, 5.11 implicit veto power 5.06

Wrongfully removed 13.04

Vienna Convention on the Law of Treaties (1969) 14.10, 14.11 article 31 14.10

World Trade Organization (WTO) 5.02, 5.08

adjudicating bodies 5.08



appellate body 5.02, 5.08, 5.11, 5.14



deregulatory 5.27



dispute settlements 5.14



judicial bodies 5.14



panels 5.08, 5.14



WTO agreement 5.05, 5.06, 5.11, 5.27

Voting process 8.13 secrecy of voting 8.13 standardise 8.13



strong re-regulatory 5.27

W

Y

Violence against women 3.21, 3.27 Vote 5.05, 5.16, 5.17, 7.34, 8.06 one-country one-vote 5.17 shadow of the vote 5.06 voting 5.05, 5.07, 5.17, 5.19, 8.13 voting rules 5.19

War Damage Act 1965 12.36 Women’s rights 6.07

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347

Yukos Capital Sarl v. OJSC Rosneft Oil Co 2.03

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00_The Rule of Law_prelims.indd 24

2013/10/21 10:56:00 AM