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Saturday, 5 May 2012

Qatar Law Forum 2012 overview

For Halsbury's Law Exchange

I enjoyed the privilege over the weekend of attending the 2012 Qatar Law Forum, held in Doha. The theme of the conference was “The rule of law in a time of change”. The conference was attended by over 400 delegates from approximately 60 jurisdictions, including many leading figures from the legal profession in this country. Here are a few thoughts on some of the sessions I attended and the conference in general.

The first Qatari Law Forum, held in 2009, had focussed largely on the international financial crisis. Needles to say that crisis has still not been resolved, but a second international event gained much of the attention on this occasion, namely the Arab Spring. Delegates were present from many of the affected countries, including Egypt, Bahrain and Libya. Almost all took the revolutionary bull squarely by the horns. A robust consensus held that the causes of the Spring were corruption and an absence of human rights, including - but not limited to - the ability of ordinary citizens to participate in the political process. There was also a consensus that removing dictators was only a means to an end, and unless fundamental changes were made those who led and participated in the revolutions would resume their civil unrest.

As to the ongoing financial crisis, a specialist session on Islamic Finance suggested that Islamic banking offered an alternative model which had the attraction of being based firmly on ethics. It was countered that the Western banking system was not value-neutral, being based on notions such as freedom of contract, freedom of property and social responsibility, including liability for negligence and breach of contract. At this point in time, however, even the strongest defenders of Western law (of whom I count myself one) have to concede that one of the central factors behind the financial crisis was failure of regulation, and it behoves Western law makers to think laterally – and look to alternative models – when trying to formulate a system which might avoid a repeat. Whether that be Sharia law or something else is another question, but reshuffling the deck chairs on the vessel of old regulatory models may not suffice. On the other hand, the Islamic financial experts expressed a wish to find a way of creating more exotic banking products in a Sharia-compliant fashion.

Of course one of the most significant regulatory changes in the United Kingdom of late has been the new Bribery Act. This was discussed in the first session of the conference, chaired by Baroness Scotland, under the theme of international corruption and how it damages the rule of law. Here a stark obstacle was identified: how to find an internationally acceptable definition of the term “corruption”. From the floor Lord Scott was blunt and unequivocal: one man’s corruption is another man’s standard business practice, and it is hopeless to think that very different business cultures can ever be reconciled on that point. I have to say I fear he is correct, though other delegates were more optimistic and most seemed to think the nettle of an international definition had to be grasped however difficult.

Staying with the theme of corruption, the panellists were not so idealistic - or legalistic - as to assume that any form of corruption would be fatal to the rule of law. Low level instances of bribes here and there will probably not bring the system down. What is certainly damaging, however, is when the guardians of the rule of law are themselves corrupt. The obvious example is that of the judiciary: if judges are not conspicuously independent and fair-minded, there will be no confidence in their decisions and hence the legal system as a whole. The executive too is a key player in this regard: it has to respect and enforce judgments; an order without enforcement is building a castle not so much on sand as thin air.

Here too a note of realism was sounded. It is all very well demanding that the judiciary be independent and set the highest standards. But one delegate told of a Chief Justice in a developing country whose salary was roughly $35 per month. Another spoke of a senior judge who was a single mother of three but whose failed state had not paid her for nine months. Is it really so easy to criticise people in those conditions for taking money placed in front of them? Others told of judges whose personal details, and those of their families, were published in the press, with the clear inference that their enemies would know where to find them. Again, pious principles of legal philosophy might dissipate somewhat in those circumstances. It follows that integrity and independence are not enough. Proper remuneration and protection are required as well, along with ongoing training and resources.

At the Chief Justices’ panel it was asked what those holding such office could do to promote the rule of law internationally. Quite properly it was suggested that travelling, giving speeches and otherwise lending expertise should all be encouraged. My own modest contribution at this point was to argue that the best method was by the day job. The most important contribution any Chief Justice can set is to try cases – and equally importantly be seen to be trying cases - fairly and openly, irrespective of the wealth, political connections or other importance of the defendant.  By that means judges promote public respect for the legal profession and the rule of law.

To that end I tried to stress the importance of free speech and open justice. The former was the subject of the final plenary session, which was headed “Freedom of communication and expression in times of change”, and included HLE chairman Joshua Rozenberg on the panel. The panel rehearsed the familiar points about limits to free expression, the need for the media to act responsibly, and the debate in the UK presently taking place in the form of the Leveson inquiry. In the ensuing discussion Sir David Keene pointed out from the floor that in the age of the internet it may prove impossible to prevent publication of anything, even if a consensus exists that something should be suppressed (the identity of a victim of abuse, for example).

That is a point which I have made before, and I remain of the same view now. The very weapon identified by earlier speakers as an important part of the overthrow of dictators during the Arab Spring (who could not suppress evidence of better political systems elsewhere, nor communication between dissidents) might also undo legitimate constraints on freedom of expression in a free and democratic society.

In this regard, however, no-one could disagree with Lord Judge LCJ, who observed as a concluding remark in the Chief Justices’ session that no-one in the room was in a position to predict what would happen even five years hence in terms of technology.

A short summary of the conference can be found in the LexisNexis newsletter which was produced each day, and otherwise on the Conference website.

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