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Mainstream, Vol XLVII, No 50, November 28, 2009

Privatisation of Judiciary!

Saturday 28 November 2009, by K G Somasekharan Nair

The increase in the number of civil cases in a country is its social mascot, as it symbolises the abundance of law abiding civilised citizens accepting the authority of the judiciary to get their grievances redressed. Otherwise, they would have turned to self-retaliation or employed roughnecks, a usual practice in America and Britain enkindled by their criminal heritage, to enforce justice in their own way; hence all civil litigants may be reputed for their civility. But the increase in the number of pending cases betokens the failure of the law and judicial system to provide justice for taxpayers in time, according to the body of principles recognised as enforced by the state in the administration of justice. In this circumstance, upright savants may advise the society in equanimity to dismantle the rusting laws and the judiciary and reconstitute a new framework to sate the material needs and launch their ideas for discussion and coherence. But unfortunately some salary lords theorise that litigations result from the ignorance and ego of the disputants, proving that they are proxies of somebody.

The flood of pending cases, according to judicial prognosis only of Britain and their erstwhile colonies including America, is due to three infections, namely, judicial review, independent judiciary and judicial precedent. Among the three, Britain had not admitted judicial review, the unlimited power of judges, mere government employees, to set aside parliamentary enactments proposed by the government, the command of the Sovereign. Because all statutes in Britain are formulated by the Cabinet, scrutinised by the Select Committee of Parliament including members of the Opposition, thereafter voted by Parliament after deep discussion and at last assented by the king. During that prolonged process, opinions arising from various corners of society, including the media and learned individuals, are attended by the Cabinet and changes are made on the bill then and there. At this juncture, the British Parliament can make any law on simple majority, without fearing judiciary, and this could include even an Act to depose the King whose veto power has lapsed through nonuse, and he is bound to assent any measure passed by the two Houses of Parliament, even though it could do nothing virtuous without external pressure so far. But in America there is no Cabinet or Parliament and sometimes it may be reasonable for them to place their laws for a second scrutiny, that is, though judicial review. But as a challenge to people’s sovereignty, some erstwhile British colonies after emancipation adopted the Westminster system of democracy, judicial precedent and independent judiciary of British feudality, and in addition the judicial review of America, like the sore on a hunchback, to manifest their inferiority complex and intellectual servitude to all Whites.

Regarding independent judiciary, that idealism evolved in feudal Britain and they superimposed it over their colonies, but hypocritically withdrew it from their own internal judiciary for the smooth development of capitalistic relations.

The English system is highly efficient; however two important political figures, Lord Chancellor and the Secretary of State for Home Affairs, have considerable authority in ensuring a smoothly working judicial system through their power to make appointments, draft rules, direct cases from one court to another, and maintain general supervision of all court business. The more important of these two from the point of view of the court is Lord Chancellor, who is always chosen from among distinguished senior barristers—a reflection of the strong feeling in Great Britain that the court should be directed by legal experts. He is appointed by the Prime Minister and he is a member of the Cabinet from the House of Lords. He appoints all the justices of peace, country court justices, and judges to the central courts, except for two—the Lord Chief Justice and Master of the Rolls—who are appointed by the Prime Minister. He maintains a general supervision of the whole court system and helps to keep the court structure efficient, up-to-date, and abreast of its work.1

Whatever the qualities of Lord Chancellor, he is a Cabinet Minister, appointed by and continuing on the will and pleasure of the Prime Minister, and through that medium the Prime Minister controls the whole judiciary. Hence judges are accountable to the British Prime Minister ultimately, and no judge in Britain shall dare to pronounce a traitorous judgment. Thus inside Britain independent judiciary is not unaccountable like the judiciary seen in the Middle East. In addition, the legislature, executive and populace in Britain are free from the fear of ultimata issued by publicity-oriented judges on trivial grounds. The judiciary established in Britain is different from the judiciary in Asiatic countries. From the very beginning itself, raptorial laws and the judicature of Britain, evolved in feudal darkness and imposed over non-feudal Asiatic societies, was delay-making, irresponsible and unjust. Raja Rammohun Roy, while furnishing answers to the questionnaires issued by the Select Committee of British Parliament in 1831, revealed the period of delay made by Anglican courts in the Middle East:

In the zilla courts, a case may be pending on an average about two or three years, in the courts of appeal four or five years, and in the Sudder Dewani Adawlat the same period.2

Rammohun was a man of highest qualities, his statements are most credible. If the period of judicial delay in 1831 is compared to that of present, it may be realised that no superficial painting can make it upto date unless it is demolished wholesale and a new system is built up on a substructure of nationalism, in place of the alien one.

Rammohun had furnished the course and mode of delay in minimum words while answering a query.

It may be acknowledged that irregularity in attending the discharge of the judicial duties, and the want of proper discipline or control over the judicial officers are the main causes of obstruction in the dispatch of judicial business; and those daily growing evils in every branch of the judicial establishment have, in a great measure, defeated the object which the government had in view in establishing it. Moreover, some of the judges are very irregular in calling on cases, choosing any day and time that suits their convenience to occupy the Bench singly. The pleaders being natives of the country, have little or no influence over the conduct of the judges to prevent such irregularities and dare not hint dissatisfaction.3

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In course of time, judges as well as pleaders became natives, the government also became native, but nobody could rectify the delay, irresponsibility and irregularity perpetuated in that system, because precedent keeps all evils forever. One reason for that evil was English laws on feudal concepts and Calvinism, imposed over colonies, were not intended to create a welfare society through administration of justice but everything was for the convenience of plundering. Another reason was that judges, constituting the material structure of the judiciary, were idiotic lawyers in London. In Britain, it was the period of industrial revolution progressing on the regular influx of gold, silver and raw materials, booties of Sonar Bangla; banking, trade and commerce also developed proportionate to industrial capitalisation which catered enough practice and income for efficient lawyers in London. Moreover, the transatlantic voyage to Asian shores in wind-beaten wooden vessels circumnavigating in the Cape of Good Hope, needed more than six months for one side from London; on voyage, the sailors were always placed in dismay of death caused by tempest, whirlpool, Spaniard, Portuguese, French or sea pirates. Nobody travelling to Asia had any hope of return to the homeland. So it is beyond doubt that all English judges in Asia were garbages of the London bar. Similarly, feudal and knightly families, less than five per cent of the total population, were leading luxurious life on the labour of the remaining; none among them had any necessity to undergo such a tormenting voyage and those who shored wearing ornaments of ‘Lord’ and ‘sir’ were spurious barons and fake knights with all vices of the English society. Because

it is just as difficult to appreciate what sort of the people were the English. Among foreigners they had a name for drunkenness. Indeed everyone drank liquor of some sort. The rich drank port and sherry, the poor drank gin, and children drank small beer. For the first fifty years however the gin-shop, with it’s proud guarantee ‘drunk for a penny, dead drunk for two pence’ was as popular with the poorer people of the town and it was fatal to their health. The English of the eighteenth century were tough people, however. They had to be, to with stand the diseases which come from unclean food and unventilated and ill-drained houses, and the surgical operations performed without anaesthetic on infected or fractured limbs. They did not treat each other gently or did not expect gentle treatment in return. As a victorian historian said of slightly earlier times, ‘Masters well born and bred were in the habit of beating their servants. Pedagogues knew no way of imparting knowledge but by beating their pupils. Husbands of decent station were not ashamed to beat their wives.4

It may be remembered, Queen Elizabeth had awarded capital punishment to pickpockets, and it reflected the total criminality of the English populace. Thus, goons, footpads, drunkards and callous men attracted by the bullions of the Middle East and having nothing to lose, extracted out of the English society of that period; they were appointed as administrative and judicial lords over Asiatic societies and their precedent, delay and unaccountableness are being maintained by the natives even after 200 years, disregarding their political freedom.

In the Second World War when America’s atom bombs got victory, one hidden agenda of the war was to boot out Muslims, the only valorous disposition against universal baptism, from Palestine and thereafter from the world. It was the mission of failed crusade from the 11th to 13th centuries which continued in the British colonies of the Middle East from 1757 to 1947. However, America and their war-brides recorded their half-triumph of the crusades by the end of the Second World War with the creation of an Israel in Palestine, and using that base camp a series of expensive battles are being conducted to eradicate Islam from Arabian territories and usurp the oil springs. In addition, America was very particular to be a party by themselves in any dispute arising in any corner of the world, and all catastrophes created by them everywhere to become a global emperor by almost depleting their treasuries. American civil societies, the direct inheritants of British criminality, are witnessing a regular increase in crimes and expenditure to maintain the rule of law is also increasing in proportion. To meet all expenses, the American Government had withdrawn themselves from almost all service sectors and handed over everything to the private sector and as a tactics to the privatise judiciary they fabricated the alternative dispute resolution (ADR); Britain is also following it, and other dependant nations are compelled to do so. Here the alternative system is judiciary in the private sector and dispute resolution is compelled conciliation.

No doubt, conciliation, a well established practice in all societies from time immemorial, is better than litigation; but it must not be executed on throes of the threat made by the delay of the judicature or to curtail the judicial expenditure of a country to re-appropriate under any other heads of account or to enrich the private sector. In Britain and America there are private individuals and companies for extra-judicial settlement like Alternative Dispute Resolution Group, Arbitration—A Commercial Initiative, and ADR Chambers (UK) Ltd is such a company. It is incorporated under the Companies Act and promoted by the lords on feudal lineage, retired salary lords and lawyers. Before filing a suit by an aggrieved party, say, creditor, in a court of law, such a company angles both the creditor and the debtor and settles the issue through the bargaining and conciliation process within a few hours on terms acceptable to both. The profit of the company in this engagement is their service charge, the amount payable by the creditor to the court of law, usually ten per cent of the suit amount and lawyer’s fees, probably that amount. If the said service charge, twenty per cent of the credit amount, to be spent by the creditor for a suit in a court of law is paid to the company, he has nothing to lose. In addition he can save the subsequent heavy expenditure due to delaying court proceedings, another huge amount to be spent for repeating appeals and such other legal entanglements and, above all, valuable time. Thus, if £ 1 million is the credit amount, the profit of the company is £ 200,000, 10 per cent due to government and another 10 per cent due to lawyer’s fees. In addition the company can realise a reasonable service charge from the debtor to be spent by him as his lawyer’s fees in a single business. Don’t be jealous of the private sector. But the actual danger is that the profit of the company in such transactions is the loss of the government and ADR becomes a parasitical formation on the exchequer, leave aside the lawyers who are the individual victims.

There is another company quartered at London, Chartered Institute of Arbitrators, having a wingspread over 85 countries, and almost all salary lords in the Middle East are acting as its proxies. They are using government machinery and funds for propagandising the ADR, tantalising lawyers and the marvelous progress achieved by Britain and America, by means of privatised judiciary. It is the first dose of slow poisoning, and the second dose is the branching out of the company widely, and then bewitching people to those branches, condemning the delayed justice in courts of law.

In this context, nationalists in all political parties in erstwhile British colonies may kindly realise, the delay and unaccountableness of the colonial judiciary, which is not permitted in capitalist Britain, and as observed by Raja Rammohun Roy in 1831, is continuing and it has become more anti-people with the post-colonial addition of judicial review. The nationalists may activate people’s sovereignty to raze to the ground all transoceanic structures in the socio-political life and build nationalistic laws and judicature, ignoring the law professionals who cannot escape from Blond-Yankee captivity.

REFERENCES

1. Major Foreign Powers, Gwendolen M. Carter and John H. Herz.

2 Selected Works of Raja Rammohun Roy, Publications Division, Government of India.

4. A History of England, John Thorn and others.

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