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AIJA ASIA-PACIFIC COURTS CONFERENCE CONFERENCE DINNER, SYDNEY TOWN HALL SATURDAY 23 AUGUST 1997 OUR REGION - THE CHALLENGE FOR LAW & JUSTICE The Hon Justice Michael Kirby AC CMG 1
THE PLACE TO BE Forgive a few nostalgic reflections. I love our region of the world. Lucky are we who live in Asia and the Pacific. The century that is closing was the century of America. The next century, we are told, belongs to us. Global forces of economics, population and culture ensure that the 21st century will be ours. My first visit to the Asian mainland occurred in 1963, the year I graduated in law. I took part in a delegation of Australian university students visiting Malaya and Singapore. I tasted the succulent air of Asia. I have not been able to escape its fascination ever since. As a young barrister in the early 1970s I twice interrupted my professional life to travel by Kombi van in every part of Asia to which intrepid driving would take me. I have seen the subcontinent in all of its variety. I have explored the golden temples of Thailand and the stupas of Borobodur. Like Kipling, I have seen the sun rise out of China, 'cross the Bay. In 1970, for a week in Goa, I saw it set, a blaze of crimson, in the Arabian Sea. Three times I have driven through the Khyber Pass. There are not many parts of our region that I do not know and like. A fortnight ago I went to the National Law School in Bangalore, India. There, in company with the Chief Justice of South Africa, I received an honorary degree at the hands of the Chief Justice of India, the Chancellor of the University. It was a golden time as India, with Pakistan, celebrated the 50th anniversary of independence. On my way to Bangalore, I diverted to Goa. I went to the beach on which I had seen the crimson sunsets in 1970. I stood in the very spot where my van had stood and where I read history and poetry but little law. Nothing much had changed. The dogs and pigs still ran around. The palms were still there. The waves still crashed angrily in time with the monsoon. The fishermen went about their work, as if indifferent to nearly thirty years of life that had disappeared since I was last there. I could retrieve exactly my feelings of that time. A life in the law is not always a good preparation for reflection and for time apart with poetry. A life in the law is typically too busy, too efficient, too remote and even imperious. Every now and again judges and lawyers, and those who work with them, must try to recapture simplicity and the world of the spirit. Perhaps, I thought to myself on that beach in Goa, this is what has always attracted me to the civilisations of Australia's neighbours. A realisation of something which we have partly lost: a sense of priorities and an appreciation that, beyond our economic selves, is a world of inner being which quests insistently for justice, fairness and rational order. In the midst of a conference in which judges and lawyers are rightly worrying themselves about the injustice and unfairness of the inefficiencies of their legal systems, we should all return, in our minds, to the Goas of our experience. We should remember that every human being who comes into our courts, however irritating, angry, inarticulate, foolish or discreditable, looks to us, the lawyers, to administer justice according to law: tempering it, where necessary, with mercy that comes from wisdom. As my professional life developed, I have travelled a long way from that Kombi van standing on the beach at Goa. Chance - pure chance - has afforded me opportunities, as a lawyer and as a judge, to view the administration of justice in many countries of our region. I cannot say that the problems are the same in every land. They are not. The courts of our region range from the electronic "virtual courtrooms" 2 of Singapore and the facsimile filings of Australia to the almost total destruction of law and its institutions in Cambodia. My first encounter with Cambodia was in a seminar during the UNTAC period. It was designed to teach the newly recruited judges how to be judges. Most of them were teachers, with no training in the law. They asked us, their teachers, rudimentary questions. Could they continue to belong to the Government political party? Could they accept presents to supplement their meagre salaries of $US20 a month? If they had no books and there was no law, how could they be judges? The last question was easily answered by the common law judges. We told them to do what the judges of England taught us from seven hundred years ago. There is never a gap. Create the law. Do so on a foundation of reasonableness and justice. Explain your reasons and share them with your colleagues. And try to act consistently. Then, the people will honour the judges. My successor, as Special Representative of the Secretary-General of the United Nations continues to report that the destruction of the institutions of law and justice is the most urgent challenge facing Cambodia 3 . In recent days I have thought of those judges and court officials with whom I dealt in Cambodia. For them, many of the problems addressed at this conference - the technology of courts, ADR, the efficient management of big commercial litigation - would seem entirely remote to their lives. We do well, at a conference like this, to share our wisdom. But we should also remember the great disparities that exist in the world, reflected quite acutely in our region. There is no single problem. There are many. My experience in the Pacific is more recent. In 1995 I was sworn as President of the Court of Appeal of Solomon Islands. That experience opened my eyes to yet another world close to Australia. Fortunate is a lawyer who can serve, even for a little time, in the administration of justice in a country other than his own. It gives you eyes to see yourself and to renew the critical examination of all that you do. On my first day as a judge in Honiara I attended the morning service at St Barnabas' Cathedral. The liturgy and the hymns were familiar. But the over-crowded church and the fervent devotion of the congregation demonstrated how far the beliefs, carried by the missionaries, had been embraced and taken over and made their own. Not a single European face was seen officiating in the service. At once I determined that, in my role as President, the same should be my objective in the Court of Appeal. I insisted, for the first time, that in every case a local judge should sit with the visiting appellate judges. What a great experience it was for me to participate in decision-making with colleagues such as Sir John Muria, Chief Justice of Solomon Islands or Sir Mari Kapi, Deputy Chief Justice of Papua New Guinea or Justice Richard Savage of New Zealand and Justice Glen Williams of Queensland. For all the blessings which the British administration of independent and uncorrupted courts brought to the common law lands of our region, one institutional failing was clear. The failure to mould the Privy Council to the changing multi-racial, multi-cultural character of those countries. Connected with this the failure to exhibit a sense of urgency in substituting local judges for the privileged visitors and adapting local law to new places. Amongst the sweetest thoughts that sometimes flash across my mind now that l have retired from my office in Solomon Islands, is of the time I sat in the courthouse in Honiara, with judges of different lands at each side, striving to do justice according to law. And of the trust that was placed in us to decide the cases in a wise, lawful and proper manner. I hope I never forget the trust in the eyes of the people. It is important that all of us, judges, advocates, court administrators and other experts remember that the end object of our work is to win, and to deserve, the trust of the people. Alexander Hamilton's pregnant phrase still rings true two centuries on. The courts possess for their authority "neither the Sword nor the Purse" 4 . Whilst judicial administration must maintain and respect a certain aloofness on the part of decision-makers (so that they are, and are always seen to be, independent) this does not require remote or imperious institutions, still less over-proud office-holders 5 . A major theme of this conference, as of most efforts in judicial administration in recent years, has been that of expanding access to justice and of providing it in ways that are more accessible, quicker and less costly 6 . The challenge for us, wherever we serve, is to pursue these goals whilst enhancing the trust and confidence of our fellow citizens who are increasingly critical and sceptical of our performance, often with just cause. TIMES PAST & TO COME At about the time I made my first foray into Asia in 1963, the then President of the International Commission of Jurists, the Honourable Vivian Bose was, by chance, visiting Australia. He was a distinguished Indian jurist who had come to address the Australian Legal Convention. His chosen theme was "The Rule of Law in the East" 7 . It is interesting for me, his successor, to revisit the ideas which he opened up in 1963. And to contrast the world which lawyers knew in the early 1960s with the world which we know as we approach the new millennium. Bose spoke very directly. He addressed specifically the attitudes of racial superiority which lingered in Australia and elsewhere in the world at that time. He went directly to the case of South Africa and its Immorality Act which made "sexual immorality" between a white person and what Bose called "a coloured one", a crime. He went on 8 : "Let me put this on a personal plane. My wife is white. I am coloured. Say my plane was [to land] in South Africa. Would we be breaching the Immorality Act ...? ... [I]t offends my sense of dignity; it hurts my self respect even to feel that I must make these enquiries and be sure of the answers ...?" Bose's point was that, ultimately, law is not enough. Even the rule of law, precious as it is, must be enhanced by the never ending quest to make the law just. It is not enough for lawyers simply to enforce an abstract notion of law. A mechanical, and even a supremely efficient, performance of that task would debase the nobility of our mission which is justice according to law. Efficiency and the most perfect court administration are not enough. At the end of his remarks, Bose had a few things to say to Australian lawyers. His words were well ahead of their time 9 : "And now let me turn to Australia. It is situated in the East. Its contacts and interests will be increasingly focussed in this area, especially in the business world. It has the priceless advantage of having carried the Rule of Law with it from across the seas and planted it firmly in this continent ... Australia can therefore serve as a pattern for the East to study, and, if need be, to copy or adapt." He pointed out that "old values are crumbling in the world" and that Australian lawyers should 10 : "[E]ncourage contacts with their neighbours ... hold conferences and seminars and meetings; see that there is a lively interchange of thought and experience ... admit students of other countries in its universities and schools and send its own ... abroad to meet other peoples in their own lands". This was wise advice. But it took us two more decades to come fully to grasp the challenges and opportunities which our accidental geography has conferred upon us. I say accidental, because the Imperial authorities only decided on the prison settlement in this place after two other options on the African content fell through. What are the chief differences between the courts and the administration of justice now from 1963 when Bose gave his wise counsel to us? 1. Technology: The most visible difference is in technology. Courts, tribunals and alternative dispute mechanisms are voracious consumers and processors of information. It is therefore inevitable that the new information technology should become important adjuncts of the way we do our work. Singapore, a hub of information technology innovation, has already launched a high-tech computer system for the courts. If we can mobilise technology to tackle the abiding problems of delay and cost, we may be able to reclaim, in part at least, the relevance of the court systems for solving the most important problems of ordinary citizens. But will it stop as an adjunct? It seems unlikely. If lawyers go to hospitals or sit in the dentist's chair they see the miracles of technology and the way it is now actually performing functions which once required the intervention of a human professional. It seems unlikely that the law will forever be exempt from technology performing tasks which, at this time, are still committed to human beings. We should not mock at the prospects of artificial intelligence in our discipline 11 . If you want to know where the law is going, look at other professions, glance at the technology now available and reflect upon the differences which have occurred in the space of one professional lifetime. The pace quickens. Judges, lawyers and court administrators must keep up with the pace. 2. Global Convergence: A second change is global convergence. In 1963, common law lawyers generally had a fairly comfortable self-satisfaction about their superiority. Theirs was the finest system with little to learn from outside. Vivian Bose was not so sure. He pointed out even then 12 : "We are proud of the impact that the common law has made on world thinking, but we must not blind ourselves to the fact that the Code Napoleon as the civil law has had a greater impact on the world at large than the common law. ... There is a ferment of change going on in these lands, and some of them are looking to the common law and finding much in it that is desirable ... [W]e will be very foolish if we are not able to see some things in their way of life that are better than our own". Again Bose was before his time. At this moment, in Australia, questions are being asked about the need to modify the inherently expensive and time-consuming adversary trial. In Asia, many lands which follow the common law are now asking similarly fundamental questions. How to adapt the confrontational procedures of that system to cultural norms that feel more comfortable with consensus and conciliation 13 ? Yet, ironically, precisely as we look to the civil law for ideas, the French President has established a Commission on Criminal Procedure which is seeking to derive lessons for a civil law country from the common law 14 . Globalism is not confined to economic markets. It belongs to ideas. It is the privilege of our generation of lawyers to live and to work at the moment in history when the ideas and techniques of domestic jurisdiction are adjusting to regional and world-wide pressures. 3. Human rights: One of those pressures, strongly affecting our discipline, is the world-wide movement for respect of fundamental human rights. Last week, the Supreme Court of India followed a decision of the High Court of Australia in Teoh v Minister for Immigration 15 . It held that subscription to an international convention (in that case the Convention for the Elimination of All Forms of Discrimination Against Women ) gave rise to a legitimate expectation that the government would conform to its international obligations 16 . The impact of international human rights norms on the law is an inevitable process, harmonious with our time 17 . It is interesting to note that China is reportedly considering adherence to the International Covenants 18 . Although some values will differ in different parts of Asia and the Pacific, truly fundamental human rights are, of their nature, universal. My own experience in Cambodia and elsewhere in the region has taught me the greater importance attached in Asian societies to economic, social and cultural rights. Lawyers in a country such as Australia sometimes see such rights as non-justiciable. But the pressing human rights problems in Cambodia were, and are, getting peace, clearing land mines, obtaining drinkable water, securing basic education, being assured of emergency health care. Western countries must learn that civil and political rights are not, alone, enough. In his speech in Bangalore, accepting his Honorary Degree, the Chief Justice of South Africa urged consideration by India's future lawyers of an Asian regional human rights body - a "South Asian Court of Human Rights" 19 . He pointed out that if Frenchmen, Italians, Germans and English citizens (and he might have added those of Bulgaria, Moldova and Romania) with widely disparate linguistic and cultural traditions, could come together to accept the human rights judgments of a single European court, we in Asia and the Pacific should be able to do so. Citizens know that the content of law and how it is administered are vitally important to a properly functioning court system. Ours is no ordinary product. Output and throughput, whilst important, do not define the product which we should be producing. 4. Corruption: One of the chief issues on everyone's lips as India, Pakistan and Bangladesh celebrated the Golden Anniversary of Independence, was corruption. Repeatedly, people old enough to remember the Raj contrasted the corruption which now infects many parts of government 20 . So far, the upper judiciary has escaped. But whilst I was in India, the Chief Justice reported publicly, and with plain outrage, that a "gentleman" in government had approached the Supreme Court concerning a big corruption case which that Court had taken to itself when it came to a view that government agencies were back-pedalling. Not a few who might know told me that the problem of corruption in the courts of India was not with the judges, but with court officials controlling the priority of hearings in the crush of burgeoning cases. We have grown up to believe that corruption, with its corrosive influence, is a complete stranger to the court system. According to Sir Robert Megarry, a Hansard writer in the House of Commons in London reported that a judge had taken a "bride" from a litigant. The reporter just could not believe that the speaker had said "bribe"; so alien was the very idea to our tradition. Taking a "bride" seemed much more likely. But good court administration must maintain a vigilant alertness to the dangers of corruption. In Cambodia, taking gifts was the only way most judges could survive. My experience has taught me that some things are closely inter-related with the absence of corruption. They include the state of the substantive law, the conditions of service of the judiciary and a vigilant and free press. Take any one of these elements away and the polity will be seriously weakened. 5. Consumer attitudes: The fifth big change is seen right here. It flows from consumer, political and professional attitudes. The people will no longer tolerate gross inefficiencies in the administration of justice. The courts themselves are now inviting, and acting upon, consumer perspectives 21 . Professor Thomas Church, giving a "Consumer's Perspective of the Courts" suggested that no consumer oriented establishment could organise itself as the courts typically do - no department store, airline office, hospital or university. He suggested that 22 : "With the exception of the prison service and perhaps a few unrepentant social welfare agencies, I know of no organisations, in or out of the public sector, which appear to be quite as cavalier about their clientele are the courts in the English speaking world." Like the prisons, the problem has derived, in part, from the antique buildings and facilities commonly provided to the courts. But the problem is not just one of bricks and mortar. As we all know, it involves attitudes of mind. That is the achievement of AIJA and of this conference. They help to break down those attitudes of indifference, acquiescence and acceptance. But is the message reaching the right ears or are we merely speaking to each other, the already converted? 6. Haves and have nots: On my way back from India, my new degree in hand, I read in the Straits Times 23 how Singapore's per capita income had, for the first time, overtaken that of Germany and the United States. It had overtaken Australia's a couple of years back. In the big league, Singapore now ranks sixth in the world. Another country of our region, Japan, ranks third. Hong Kong, China/Taiwan and Korea are surging forward. In terms of economic growth, and despite occasional setbacks, the economic prospects for our region are apparently unlimited. By way of contrast, many Western countries have entered the economic and psychological doldrums. The German President, Mr Roman Herzog 24 , in a major speech given earlier this year, described "a vast sense of discouragement ... [a] crippled feeling hang[ing] over our society". He said that it originated in a loss of economic dynamism, a discontent with the rigidity of life and an "unbelievable mental depression" stemming from high, prolonged and seemingly intractable unemployment, especially amongst the young. These are the worlds which the court systems must serve. There is the angry, confused and sometimes demoralised world of the "Newly Declining Countries" 25 to which law and order must be brought. And the countries in the economic ascendant, many in our region, which find themselves suddenly and perhaps unexpectedly overtaking the rest. They must watch and learn from the shifting fortunes of economic power. The so-called "tiger" economies should now do more for their neighbours than at present they do. In this region and in the world we are all closely inter-related. Singapore should be giving more help in judicial administration to Cambodia. That goes with being sixth. Japan should be giving more help to Bangladesh. That goes with being third. Hong Kong should be helping Fiji. All of us should be sharing the fruits of our experience. That is what I take these last two days to have intended. STANDING TOGETHER We have come a long way in the dialogue of civilisations. It was Pliny 26 who recorded the three rivers that lay between China and Malaya. Describing to his son the then knowledge of the world, he told of journeys lasting many months and even years which would take the traveller past the Brachmani (the Brahmins) to the land of the Camarini (the Khmer). He described the latter as a people always happy because they were without a government, apparently ruling themselves. Their land was a place of rubies and sapphires 27 : "Amongst all of them, no-one gets angry, nor goes to law; nor are there quarrels, greed, treachery or anything bad." Tomorrow I set out for London. I will cross this continent. The plane will take me over Indonesia, past Brunei and Singapore and Malaysia, and into the Kingdom of the Thais. On the right wing will be the Khmer and further beyond Vietnam and China. On the left wing, as I proceed to Europe, will be Bangladesh, India and Pakistan. In half a day I will traverse our entire region which for Pliny and his time was a lifetime's adventure. This change is a metaphor for the world we live in. It is a world of remarkable technology, of global convergence, of a search for fundamental human rights, of dangerous corruption, of insistent consumer demand and of a need to share our experiences and our obligations. A fine Australian Aboriginal poet wrote of the relationship between his people and the other Australians. What he said was true for all of us 28 : "Let these two worlds combine, Yours and mine. The door between us is not locked, Just ajar. There is no need for the mocking Or the mocked to stand afar ... Your world and mine Is small. The past is done. Let us stand together. Wide and tall And God will smile upon us each And all And everyone."
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