Denial of Justice and State Responsibility under International Law

(By A. Mohamed Mustaque, Advocate, Mk Associates, Ernakulum)

This article is sequel to article written by  Senior Advocate P.K. Suresh Kumar under title Globalisation and the Judicial Sovereignty of India (2012 (4) KLT Journal p.18).The above article is in context of arbitration award passed by the Arbitral Tribunal in Singapore wherein India is directed  to pay compensation  under Bilateral Investment Treaty for the delay in Supreme Court in India to dispose  an appeal for more than  five years. No doubt  this would sent shudders down spine of any proud Indian as depicted by the author as nationalism and sovereignty of India  is identified by  its subjects with right to self determination. Learned author laments authority of an international arbitral tribunal to question the judicial function in a sovereign country. This article is in the above back drop.

Principles  of  State  Responsibility

The issues regarding State responsibility arises in the context of bilateral negotiated agreements or under the context of resolutions passed by UN General Assembly.  A state responsibility in a given context arises on principles of imputability. The concept of denial of justice is one of the oldest concepts of international law giving rise to state responsibility in international law ."A state is responsible for its own acts and omissions; and in this context state is identified with its governmental apparatus, not with population as a whole. If the police attack a foreigner, the state is liable, if the private individual attack a foreigner, the state is not liable, the governmental apparatus of the state includes the legislature and judiciary, as well as the executive, and it includes local authorities as well central authorities(Akehurst-s Modern Introduction to International Law p.257.)". Father of modern maritime law Hugo Grotius   a profound natural law philosopher  also  had advanced this concept.   Some of leading authors on this subject are also of the view that state will be held responsible for improper administration of justice by judiciary. “Denial of justice holds states responsible under international law for wrongful administration of justice regarding foreigners committed by the executive, legislative or judicial organs of the State. It includes improper administration of civil and criminal justice with regard to foreign persons, such as denial of access to courts, inadequate procedures, and unjust decisions” (Denial of justice in International Law by Jan Paulson, Cambridge University Press.).  International Law Commission's draft articles placed before UN General Assembly also make it clear that  state is responsible  for conduct of judiciary. 

“The conduct of an organ of the State shall be considered as an act of that State under international law, whether that organ belongs to the constituent, legislative, executive, judicial or other power, whether its functions are of an international or an internal character, and whether it holds a superior or a subordinate position in the organization of the State” (Article 6).

In 1929, the Harvard Research in International Law prepared a draft Convention on Responsibility of States for Damage Done in their Territory to the Person or Property of Foreigners (1929 Draft Convention), this was modified in the year 1961 at the request of U.N. Secretariat to attempt  to codify law on international responsibility  of state for injuries to alien. This has been relied by many International Arbitral Tribunals, which is as follows

“Article 9.A state is responsible if an injury to an alien results from a denial of justice. Denial of justice exists when there is a denial, unwarranted delay or obstructions of access to courts, gross deficiency in the administration of judicial or remedial process, failure to provide those guarantees which are generally considered indispensable to the proper administration of justice, or a manifestly unjust judgment. An error of a national court which does not produce manifest injustice is not a denial of justice”.

 Thus it is clear that state is responsible for any wrongdoing by its organs under International Law.

Concept  of  minimum  international  standards

Globalisation paved way for new concepts especially in the context of investment and trade. In the international context of state responsibility, does it mean that what subjects of state cannot get, could be claimed by an alien, certainly not, this is what fair treatment principles would mean. To reiterate state has duty to treat foreigners in the same way it would treat its nationals. However due to prevalence of different regimes and different standards in the world in relation to  trade, investment etc., initiation had come from developed countries as early as 1920's ,later  UN agencies like UNCITRAL ,UNCTAD etc  in the wake of globalisation. This is how concepts like “fair and equitable treatment”, “Most Favoured  Nation (MFN)” have come into existence. These concepts are secured either in multilateral treaties or bilateral treaties or convention related to international relations of the states. These standard norms are called international standards which each country party to such treaty is bound to honour. These standards can also be on higher level when compared to national standards. Breach of these standards embodied in treaty entails in state responsibility, though it cannot be termed as breach when compared to national standard.

Investment  treaties  and  obligations

The obligation to provide “fair and equitable treatment” or "most favoured nation treatment” under bilateral treaties is as part of the protection due to foreign direct investment by host countries i.e., a standard that states the treatment to be accorded in terms whose exact meaning has to be determined, by reference to specific circumstances of application.UNCTAD  (UNITED NATIONS  CONFERENCE  ON  TRADE  AND  DEVELOPMENT) is an UN agency helping  countries to benefit from global economy, they define required standard in bilateral treaty for investment. Thus, in the case of national treatment, reference must be made to the treatment of nationals of the host country. Similarly, in determining the content of the most favoured nation standard, reference must be made to the treatment granted to investments from the “most favoured nation” (UNCTAD 1999d, 1999e, 1999f) ( see  BILATERAL INVESTMENT TREATIES 1995–2006:  TRENDS  IN  INVESTMENT  RULE MAKING  by  UNCTAD)

White  Industries  case

 White Industries case is decided by Tribunal not with reference denial of justice due to    delay involved in Supreme Court but with reference to MFN clause which runs as follows

“A contracting party shall at all times treat investments in its own territory on a basis no less favourable than that accorded to investments or investors of any third country.”

Tribunal with reference to India – Kuwait BIT which provides to secure effective means to  claim and right  held that  inability to  hear appeal for over five years amounts to undue delay and constitutes breach of India’s voluntarily assumed obligation of providing effective means to asserting  claims and enforcing rights. India and Kuwait BIT provides as follows

“Each contracting state shall maintain a favourable environment for   investments in territory by investors of the other contracting state, each contracting state shall in accordance with applicable law and regulations providing effective means asserting claims and enforcing rights.”

 Tribunal also relied on Chevron Tribunal case which decided a dispute arising U.S  - Equador treaty wherein principles of effective means has been laid down,  one of such principles is “effective means has to be measured against objective international standard”.

Conclusion

Finding in White Industries case need not be taken as an affront to India's judicial system as otherwise in the above matter Tribunal discussed about role of Indian judiciary considering large populace and held that delay involved will not amount to denial of justice .Therefore it should be treated as a pointer of failure on the part of state in providing effective means especially in the context of India – Kuwait BIT and it is rather a fall out  of mishandling of treaty negotiation by Babus in Delhi as mentioned by senior counsel in his articles as they have never understood its implication. It is painful and agony for any citizen to suffer challenge to pride related to sovereignty of his country, however in a scheme of global justice (Rawls called realistic utopia) judicial mind in international arbitration cannot be swayed on arguments on the line of national sovereignty which would be deemed as parochial. We must need to recognize to the fact that we are slowly moving into a world in which concept of justice without borders is not far from realisation— Constitution of International criminal court is one of such realisation (India not yet become part of it). We must also need to realise  how Europe respond to this concept by providing party autonomy and choice of law in European union (Regulation(EC)N.593/2008 of the European Parliament) in the matter related to contract having conflict of law applications, freedom is given to parties to choose law applicable to the contract (for e.g. German national and French national  in a contract  can choose law that applicable to the contract  like that of Brazil, or Australia etc).However our citizenship is determined by territorial sovereignty and so long as our patriotism remain based on political sovereignty, award like in White Industries case will  continue to haunt us unless world’s  largest constitutional democratic government respond to it  by constitutional means to create provision for ratification of treaty by Parliament (it supposed to  discuss especially  matters involving fiscal and country's prestige).

"The Last Page" -- A Presentiment ?

(By B. Jayasankar, Advocate, Thiruvananthapuram)

Patience is a virtue. But, at times, it refuses to pay. I feel enervated and so I am forced to pen my thoughts to energize myself. More than six months elapsed and I heard nothing from the venerable Senior Advocate, Mr. T.P.Kelu Nambiar. His untimely withdrawal after writing the “Last Page” ( 2011 (2) KLT Journal Page: 1 )and calling it a day left me puzzled. Yet I waited patiently for his return hoping that he may change his mind and respond to the calls of the renowned former Supreme Court Judge, Mr.V.R.Krishna Iyer, the doyen of Kottayam Bar, Mr.V.K.Sathyavan Nair, Senior Advocate of High Court of Kerala, Mr.K.Ramakumar, Advocate of High Court of Kerala, Mr.Kaleeswaram Raj and the like. But in vain. Mr.Nambiar seems to be stubborn and implacable. If their exhortations failed to move him then how can I expect my humble request to make a difference ? Hence, I desist from making a request and will rather speak my mind.

My knowledge of Mr.Nambiar is confined to what I have gathered from his articles/speeches. Having said that, I am only trying to bring back the ignition/inspiration which is now seen missing from the pages of KLT. I understand that the “Last Page” depicts his agony and perplexity. It also reveals that he was keeping a stiff upper lip all the while. Otherwise he would not have ventured to write the “Last Page”, which is more or less an epilogue and which sounds almost like an epitaph. But, I know many lawyers who are interested to wear the tag of tradition and are striving hard to revive the lost glory of this noble profession. What all spoken by the Senior Advocate will remain as spoken silence but for them. I wonder why the respected senior cannot write and speak for those who heed him. This is the time when his lectures and articles assume more relevance and many view him as a lodestar. Being so, he cannot simply shrug off his responsibilities and shut himself up. I wish the respected senior would return to continue with what he had been doing and what he is good at.

We can see that the respected senior’s fear is not wholly unfounded. The “Last Page”, which he projected as his swansong is to be taken as an alarm. The pain inherent in the article need not be overlooked. His hopelessness in the hapless situation has been brought out very clearly through the article. What the legal fraternity is going to do about this is a question which we have to ask among ourselves. It is time for an introspection. We all owe a duty to this profession. The duty of maintaining the decorum and dignity of this profession, thereby keeping it untainted and untarnished. Whether we all can contribute or render anything remarkable to this great, old, noble profession is a different question altogether. But we can easily refrain ourselves from indulging in things which will deface, desecrate and discredit the profession. We must also realize that the line which separates the personal and the professional life of an advocate is so thin that it lies almost invisible. So we should not overlook the importance of the personal standards to which we have to adhere to. Hence, I think, it is high time, we wear the robes over our mind too to put ourselves in reins. I stay optimistic and hoping against hope. And the only thing I know for sure is that many will miss the venerable Senior Advocate if he did not review his decision.

“ Heed an old man,

for he is a library”

Matrimonial Disputes Redressal Needs A more Realistic Approach than  
Mechanical Implementation of Law -- A Re-Joinder to 2011 (3) KLT Journal 33

(By Dinesh.M. Pillai, Judicial First Class Magistrate, Kothamangalam)

While endorsing on the views expressed by the Learned Sub Judge, Mr. V.K.Babu Prakash in the above article, I would like to add the following views of me on the subject which I had already submitted in answer to the consultation paper-cum-questionaire forwarded by the Law Commission with regard to S.498-A I.P.C.; which was mainly centered on the questions whether S. 498-A has to be made bailable and compoundable.

2. Being a cognizable offence, the Police who receive a complaint alleging offence u/S.498-A I.P.C. has no option; but to register an F.I.R. as contemplated u/S.154 Cr.P.C. and to proceed with the investigation in the case.

3. But the question is whether the immediate step in the investigation should be the arrest and custodial interrogation of the accused and whether the same will better serve the objective of the Legislation. The object of Legislation to incorporate S.498-A I.P.C. was to prevent the torture to a woman by her husband or by relatives of her husband. In practice and reality there are several instances where the above provision has been misused to wreck the vengeance of the wife or her relatives towards the husband or his relatives and in many cases the matter is handled by persons with vested interest; assisted by the Police as well as the Lawyer, even at the back of the wife. In the attempt to prosecute the offence u/S.498-A, in many cases it is seen that the ultimate result will be that the very existence of the family and the family relationship is put in peril, rendering the wife as well as the children in the family as the ultimate sufferers. But it also has to be borne in mind that the atrocities against wives in this country are increasing day by day and to prevent such cruelties, the maintenance of S.498-A I.P.C. with its proper vigour and harshness is also necessary. In other words, what is required is to preserve the penal provision as an effective measure to prevent torture to wives and also as a warning to those who indulge in the habit of subjecting women with Domestic Violence and at the same time to provide necessary measures to prevent its misuse and to ensure the prevalence of the family life in peaceful and harmonious condition.

4.  One  of the remedies which I suggest to solve the problem is that the offence u/S. 498-A I.P.C. has to be divided into 2 parts like in the case of 506 I.P.C. and the offences relating to cruelty involving physical torture should be made non-bailable and the other part relating to cruelty of other nature should be made bailable. Even in the first part, there should be a condition that the accused can be arrested only with a warrant or order from the Magistrate as in the case of offence u/S.377 I.P.C.

5. In cases u/S.498-A, coming under the part of non-bailable, the Police officer who finds the arrest of the accused as necessary shall make an application before the concerned Magistrate seeking a warrant or order allowing to arrest the accused. The Magistrate shall forward the said request; which should contain all the necessary materials to appraise the facts and situations involved in the case to the Taluk Legal Service Authority for its consideration. In cases where the wife had committed suicide, the Magistrate can decide on the request for arrest on the material available; without refering it to the TLSC. The Taluk Legal Service Committee shall constitute a sub-committee consisting of competent persons like the local Dy.S.P., Protection Officer under the PWD Act, A.P.P , Medical Officer and other competent persons headed by the Chairman of the TLSC and the said committee shall examine the request of the Police Officer and make necessary recommendations on the same. The said committee shall summon both the accused and the victims in the case and try for a settlement in the matter; if necessary by conducting necessary conciliations and mediations. If the said committee even after such an attempt, find it impossible to arrive at a settlement, shall return the request for arrest to the Magistrate with necessary observations and recommendations.

6. The Magistrate on receipt of the said recommendations shall make appropriate decision of the application by either allowing the prayer for arresting the accused or denying the same; in both cases with valid reasons. The Magistrate can also initiate a proceeding under the Prevention of Women from Domestic Violence Act, 2005 either directly or after calling for report from the Protection Officer and there also the Magistrate can seek for a settlement in the matter through mediation or counselling.

7. I think that the above procedure will form sufficient safe-guard against unnecessary arrest of the accused and consequential misuse of law by the persons with vested interest. The compliance of the above procedure will also provide the parties a proper forum or system for amicable settlement and will also form an instigation for the husband for a settlement against the chance of getting arrested in case and to avoid further proceedings of the case.

8. Conciliation should be the first step with regard to further proceedings in all cases booked u/S.498-A I.P.C. and also in matters under the PWD Act. In all the cases registered under S.498-A I.P.C. (irrespective of the nature of the offence as bailable or non-bailable), the matter should be placed before the above mentioned sub-committe under the TLSC and in all the cases, the Committee shall endeavour for a settlement between the parties.

9. The Taluk Legal Service Committee can formulate sub-committees at the Panchayat level with the assistance of the ‘Jagratha Samithies’ formed in each Ward Level which can inquire into the matters involving Domestic Dispute and try for a settlement between the parties. The Para Legal Volunteers recruited by the TLSC in each Panchayat can identify the incidents of domestic violence in their area and bring it to the notice of the Ward Level Committee of the ‘Jagratha Samithy’. Opening of Free Legal Aid Clinic at each Grama Panchayat will facilitate the public to approach the same for the redressal of their grievances involving Domestic Violences and the matters which cannot be settled there can be referred to the Taluk Legal Service Committee and thereafter to the Court of Law. The TLSCs shall make avail the assistance of Counsellors, Economists, Psychologists, Psychiatrists, Sexologists, etc., for the conciliation proceedings and service of each of such faculty shall be made use of depending on the nature of the problem involved in the particular case.

10. After the successful settlement of the dispute through counselling etc., in order to ensure the presence of the accused and to prevent further cruelties from the part of the accused, the Magistrate or the TLSC should have the authority to call for accused to execute necessary bond with conditions and the compliance of the conditions by the accused can be ensured through supervision by the ‘Jagratha Samithy’, the Protection Officer and the Police.

11. There is nothing bad in keeping the investigation in abeyance till the above conciliation proceedings are completed and any hasty proceedings will only result into the breakage of the very family life; rendering the parties in disaster.

12. Regarding compoundablity of the offence; I think that when the prosecution of offence u/S. 498-A is initiated after the failure of all the above attempts for conciliation-mediation-settlement, there is no meaning in allowing to compound the offence subsequently. It has to be borne in mind that in many of the criminal cases, the aggrieved are compelled to compound the case for the compulsion of the accused or other persons and also to rescue herself from the trauma of prolonged trial of the case. Even then in genuine cases where the parties actually settle the matter during the trial, the offence u/S. 498-A can be compounded with permission of the Court on satisfaction that the dispute had been actually settled between the parties. I think it is better in those cases to further refer the matter to the Sub-Committee of the TLSC to ensure that the matter had been actually settled between the parties and the composition of the case is voluntary and beneficial for the entire family; for which they can seek assistance of the ‘Jagratha Samithies” at the Panchayat level.

13. Apart from the strict implementation of all the Laws available, I think that the prominent consideration should be given to make awareness and to generate a culture in the Society that Women in the country are entitled for better treatment inside and outside the house and that they are not just creatures made for the joy of the husbands or his relatives so as to subject them with any form of Domestic Violence. This according to me can be achieved by legal awareness programmes, counselling and conduct of Adalaths and Legal Aid Clinics by the TLSCs with the assistance of the Grama Panchayat and like social institutions.

14. In this regard, I may also submit that a mission undertaken by the Kothamangalam Thaluk Legal Service Committee to eradicate the incidents of Domestic Violence within the Thaluk in the above mentioned manner, captioned as “DoVE Mission” (Domestic Violence Eradication), through mediations, counsellings, Awareness programmes, Adalaths etc. with participation of the Bar Association, Kothamangalam, Muncipality, Grama Panchayats and other social institutions has gained great momentum and the same had been appreciated and also blessed with a grand-in-aid of  Rs. 5,00,000/- by the National Legal Service Authority.

Some Thoughts Regarding the Meeting of A

 Client by A Budding Lawyer

(By N. Subramaniam Advocate, High Court of Kerala, Ernakulam)

1. Every beginner in the practice of law would experience a feeling of great fear and anxiety, when he thinks of meeting his clients at his office. His fear would be that, he might be asked his opinion upon law and facts, which he, the beginner, is not in a position to answer at the meeting. Anxiety would be more when the client narrates complex questions of fact and Law and seeks the budding lawyer’s opinion and remedy. This feeling is only natural and every lawyer will have that feeling at the beginning stage.

2. This natural fear is when suddenly the beginner is called upon to apply his theoretical knowledge to the practical affairs of life. The youngster would be hesitating to confess his ignorance. He feels hesitant to consult authorities in presence of client, and he may feel hesitant to ask the client to leave the papers and allow him to consider in a day or two. Perhaps, these may be equal to professional suicide. In the back ground of his hesitancy, he may give some opinion or remedy, only to find that his opinion and remedy is wrong. And the young lawyer may lose his clients by show of knowledge supported by authorities.

3. The first element of truth to be impressed upon the young lawyer in this connection is the fact that he cannot deceive the public into the belief that he is older or more experienced than he actually is. Every man of experience has a pretty good idea of what the law is so far as relates to ordinary affairs; there must be and there are men in every society and community who know more of certain branches of law than the average young lawyer. The clients, for example, bankers, builders, merchants, manufacturers and the like may be familiar with the law on their subjects. But they think that every lawyer, including a beginner, knows more than they do upon the subjects, when as a matter of fact, the lawyer undoubtedly knows less than those types of clients.  If such lawyer expresses any opinion immediately, perhaps, the result would be he would lose his client.

4.  It must be borne in mind that the first client of a young lawyer are the people who for some reason or other are interested in his welfare, and wish to help him; they are usually from among his friends or acquaintances, and employ him from a desire to give him a start in his profession and to encourage him if possible. He must appreciate the spirit in which they come, and if he does so, and divests himself of the idea that he must appear to have all the law at the tip of  his tongue, he will come through the ordeal of his early consultations with a fair amount of credit to himself.

5. The client goes to the lawyer for help and comfort; his property is in danger and he looks to the lawyer to save it, if he can, even sometimes by playing miracles, his affairs are tangled and in a generally unsatisfactory condition, and he wants sympathy, not sarcastic allusions to his past actions, he is looking for ability to straighten out his difficulties, and if he does not find what he seeks he will go elsewhere perhaps never to return again to the young lawyer. When such is the case, it is desirable and necessary for a young lawyer to treat his clients with kindness and affection; that he should beware of the sore and wounded places and refrain from doing or saying anything that will hurt or annoy one who is already tried almost beyond endurance.

6. There may be clients who get nervous upon hearing of a law suit that may destroy their peace of mind. With such clients a young lawyer should be very patient, he should seek to allay their excitement and point out the folly of worrying.

7. Needless to say that in order to become a sound advisor, a lawyer should be a good listener and should not impatiently cut him off in his narration.

8. By assuming the role of a listener the lawyer will have time to overcome his first feeling of nervousness and become cool and composed. This will enable him to more readily grasp the details as related by the client and very soon he will find that his mind begins to arrange these details in their correct relationship to each other.

9. When the client has completed his story, the lawyer should ask him to give the version of the other side, and by careful questioning he can ascertain from his own client facts and details which to him may seem unimportant, but which may have a controlling influence in the determination of a court. If the question presented is a simple one that can be answered without an examination of authorities well and good; but if it is at all involved, or if there is the slightest doubt it should be examined into so that the lawyer may be satisfied in his own mind of the correctness of his position before advising. If the question is one that can be settled by reference to a statute or reports in the office, the best plan is to settle it on the spot, but if it requires research and consideration the lawyer will be wise if, after taking full notes and questioning his client, and possibly others who were witnesses to the transaction, he takes sufficient time to enable him to give a sound opinion. 

10. There is a class of clients who want things done in a hurry, who wait until the last minute and then rush off to a lawyer and expect him to preserve their rights as effectively as though he had been employed sooner. Sometimes it can be done and the lawyer should always do the best he can under the circumstances, but he must not allow himself to be carried off his feet by the haste or impatience of his client, nor should he commence proceedings until he knows all the facts of the case and is satisfied that the client has a cause of action and that he has chosen the proper remedy. A lawyer may cause great mischief by hasty, ill-considered action for an impatient client and jeopardize his client’s right to a very serious extent. 

11. It is necessary, therefore, that the lawyer should first seek to win the confidence of his client and impress him with a feeling that he is acting for his/her interests in every way; he must strive to win his or her respect for his ability, so that she/he will be satisfied to rely upon him without taking her/his friends and relations into her/his confidence and appealing to them before accepting his advice. If he desires to retain her/him as a client he must be very patient and overlook many things which he would not tolerate in a man. If, however, he finds that he cannot win her/his entire confidence, or that she/he habitually acts contrary to the advice which he gives her/him, he will do well to suggest to her pleasantly but frankly that he must decline any longer to act for her. A lawyer cannot afford to be known as the legal adviser of a person who is constantly doing the wrong thing, presumably under his advice.

12. If their manner is natural and not assumed, the public may in time discover that there is a man with warm heart under the icy cloak, and come to recognize his ability notwithstanding his unfortunate manners and employ him in cases in which his abilities, rather than display, will have weight; but if the manner is assumed and persisted in, it indicates an empty head, a vast conceit, and the public will humour him by letting him severely alone.

13. Lawyer should study his client and try to understand his characteristics, so as to avoid doing or saying anything to offend the client.

14. If the client's work needs his immediate attention, then should be willing to put aside everything that will not suffer by so doing in order, that he may take the matter up. He should be ready to meet his client before or after officer hours. Night or day or Sundays and holidays whenever and wherever wanted, the lawyer should forego his pleasure and convenience, if the work of client demands it. Clients appreciate such lawyers and talk about it and the fame of the lawyer speech and his services becomes greatly in demand, which the man who will not so adjust, will soon find himself far back in the race for professional honour and emoluments.

The writer, who is a novice in law, would be happy if 10 out of 100 get inspiration and guidance from this article.