Basil Fernando

(Ed note: Following is a paper presented at the Practitioners Forum; Rule of Law and Legal Reform in Southeast Asia and China held from 9-12 June 1999 in Bangkok,Thailand.)

"Exploring yet again that extraordinarily rich episode of Pooh Bear and the bees, let us reconsider, now a Kantian point of view, two utterances of Pooh: 'The only reason for being a bee that I know of is making honey... And the only reason for making honey is so as I can eat it.' Incredible though it is, we must admit that some Ursinian students have read this as evidence of limited intelligence and even gluttony. It is, of course, - naturally among other things - an obvious teaching device for explaining Kant's basic principle that our knowledge is strictly conditioned by the constraints of our own minds. Pooh's (assumed) inability to conceive of bees as anything but honey producers, and honey except as food for him, represents Kant's doctrine of our inability to conceive of the world except in terms of space, time and causality. --Pooh and the Philosophers- By John Tyerman Williams

This quote explains the difficulties involved in a dialogue on the problems of practitioners of law and human rights between Asians and those coming under the broad category calls Westerners. For the purpose of this discussion I will use this term to mean those who have been trained under American, British and French system of law. The natural inclination of such persons would be to take for granted that a written or unwritten Constitution exists, a more or less independent judiciary exists, the necessary texts of law and procedure exists and a tradition of judicial interpretation of law exists. This is like WINNIE THE POOH presuming that all pots contain honey.

If all those conditions exist the practitioners’ task is not very difficult. He/ She must learn to use them and sometimes help to improve them. What happens if these preconditions do not exist at all or do not exist to a significant degree? For a Western observer, the question may not have much meaning, as for example what can we who live on earth do about something happening in moon or mass? Better option seems to ignore the problem and work on the hypothesis that a more or less similar basic legal structure presents everywhere. After many years of work on the basis of such a hypothesis, the Western practitioner may become frustrated. This happens often. The blame then, is placed not on the wrong hypothesis, but on other factors, such as cultural limits of some peoples or obstinacy of some political leaders.

Could we not for a moment look at the validity of the hypothesis itself ? Let us ask ourselves a few questions? Does wearing of a judges gown and sitting on a place which looks like a court makes one a judge? Are the actual power that a person called a judge has, the basic qualification and competence, a basic tradition of judicial fairness, and basic procedures, consideration if examining whether an institution called a judiciary exists in a given place? Does a document become a Constitution simply because it is called Constitution? Does something called trial, still remain a trial even if it is only meant to be a sentencing session? Should trials have an accepted trial procedure written or unwritten? Should the confession of an accused in a place where practice of torture in common be treated as evidence? When lawyers are not allowed to intervene in the actual process of trial, what are we to think of their role? Where Internal Security Laws and Emergency Regulations suspend the powers of courts can we still trust the legal system? When there is no real system of police or the system has more or less collapsed does affect things like fair trial and independence of judiciary? If the corruption is deep and all embracing can we get out of the difficulty by making the equation by saying corruption exists everywhere? Are higher courts such a Supreme Court with power of judicial review a basic requirement of a proper legal system? In the case of real stark poor and ignorant in rural areas, for example, can we apply the axiom every one is presumed to know the law? Can we presume every one has access to law? Is trial taking place after ten or more years of the incident still a fair trial ? To this many more questions may be added?

When faced with such problems one reaction is to ask are these things true ? Or are these things not exaggerations. It is WINNIE THE POOH’S problem; One is conditioned by ones own historical background and institutional framework of the society one takes for granted as a given.

Beside this there are deeper political problems; Lee Kuan-yew's conception of society governed by a hard-core group makes judicial independence out of place. Hard core people are those who are in government and every aspect of bureaucracy and society . The theory of separation of powers is opposed to judiciary has been a part of such hard-core group of persons. It is no only a Singaporean concept. The Hard-core concept is also part of the communist concept and is present in all former communist countries. It is also a concept applied by military regimes- former Suharto regime for example. Even after such a regime’s fall after several decades of dominance, the impact of practices of such a regime on judiciary last a long time after the fall. Then there is the issue of legislative interpretation of law as against judicial interpretation. This issue came to intense debate in Hong Kong regarding interpretation of the Basic Law regarding right of abode issue, which was interpreted earlier by the highest court in Hong Kong. Again, this not just a Hong Kong issue. In different degrees the same problem exists in many other places in Southeast Asia.

The problem comes when one tries to practice. It is same for example with golf or boxing. How can you play these games, without the rules of these games been applied, without the required conditions of the place, such as the boxing ring or golf court and without the referees who are respected?

To practice one need to create these conditions. That is the issue I am raising. A practitioner in most part of Asia , has to participate in creating the conditions necessary to ensure fair trial and human rights, within the legal system. Of course there are many legal practitioners who like the limitations of the system since they can exploit it for financial gains. Loopholes in law bring bread and butter to many a lawyer’s home. If the system is bad and corruption is common, it is easy for lawyers too to participate in corruption. I believe that here we are talking about a different kind of practitioners and practices.

Creating right conditions means engagement in activities to achieve legal reforms. If our dialogue and resolutions is to have some impact then we must find ways to understand the system problems and help each other in pursuing reforms. Training without reforms do not go far. One limited vision recreates another and the circle of ineffective practices will go on. My suggestion is we include into our agenda the need to develop actions to promote and pursue legal reforms to ensure fair trial, independence of judiciary and human rights.

When the legal and judicial system itself is threatened, judges can do very little to resist it. They sometimes write letters and sometimes resign. The very traditions of their professions makes it difficult for them to spearhead the resistance by way of participation in active protests even though the very system on which they stand is threatened. It is the legal practitioners, the lawyers who can and must lead the fight. Bar Association of Malaysia has given some indication of what the legal profession can do in their recent ballots to save due process and judicial independence in Malaysia

The organizations I represent have some experience on this through our activities in Cambodia, Sri Lanka and to some very limited extent in China. It is time we have a more comprehensive programme on this. If we do prepare the ground, many others will learn the game and play it well. If we do not do that others will also fall in the holes we normally fall into when we try to be practitioners.