Federal Judicial Scholarship

Speeches

Building capacity for free access to law in Asia
First AsianLII Conference, Faculty of Law, UNSW, Kensington

Free Access to Law and the Development of the Rule of Law in Asia

Justice Michael Moore
23 – 25 February 2009, Sydney, Australia

In any system of government and necessarily so in a democracy, it is vital that citizens can readily ascertain what are the laws which govern their personal lives, the commercial world in which they may work or operate and more broadly the community in which they live.

The law is truly accessible only if it is readily available and easily understood. The laws of Australia, including judge made law, are still partly derived from English law. It is interesting how the language of the English and Australian law is still infused by an extinct foreign language, Latin. One Latin maxim which still endures in Australian law is ignorantia juris non excusat (ignorance of the law does not excuse) or, expressed slightly differently, ignorantia legis neminem excusat (ignorance of the law excuses no one).

In his Lectures of Jurisprudence published almost 150 years ago, the eminent English legal philosopher John Austin challenged this maxim when he observed "[t]hat any system is so knowable, or that any system has even been so knowable, is so notoriously and ridiculously false that I shall not occupy your time with proof of the contrary".[2] Nonetheless, for Austin, if ignorance of law were permitted as a defence, the courts “would be involved in questions which it were scarcely possible to solve, and which would render the administration of justice next to impracticable.”[3] The equally eminent American jurist, Oliver Wendell-Holmes defended in 1881 the maxim on a purely utilitarian basis, and to permit the rule would encourage ignorance and public policy demanded that the individual be sacrificed for the general good.[4]

One of the oft repeated criticisms of the maxim, particularly in the context of the criminal law, is that a person who has acted under reasonable or blameless ignorance of the law nonetheless cannot be treated as morally innocent and still faces sanction under the criminal law. It is worth noting that the criminal codes of a number of European countries contain defences of reasonable or unavoidable mistake of law. A further criticism, of course, is that in the present age, with the proliferation of legislative instruments that touch upon almost every aspect of modern life, it is extraordinarily difficult for an ordinary citizen (who has not had the benefit of legal training) to remain apprised of his or her rights and responsibilities under the law. This criticism is hinted at in comments of Lord Justice Scott in 1948 in Blackpool Corporation v Locker (1948) 1 KB 349 where his Lordship said (at 361):

The maxim that ignorance of the law does not excuse any subject represents the working hypothesis on which the rule of law rests in British democracy. That maxim applies in legal theory just as much to written as to unwritten law, i.e., to statute law as much as to common law or equity. But the very justification for that basic maxim is that the whole of our law, written or unwritten, is accessible to the public - in the sense, of course, that, at any rate, its legal advisers have access to it, at any moment, as of right.

This statement is a convenient bridge to a direct discussion of the free access to law movement. The content of laws is obviously only a form of information. Information is readily available if there are no barriers to obtaining it. The Internet, potentially, destroys all barriers. It is increasingly available to the world’s populations including in Asia. Internet usage in Asia is growing at twice the rate of the rest of the world.[5] Between 2000 and 2008 Internet use in Asia grew by over 400%. Penetration by population in Asia is over 15% compared to the rest of the world which is over 30%. There can be no doubt that Internet use in Asia will increase as affluence spreads, and probably increase exponentially. However information even on the Internet is only truly readily accessible if it is free.

That is where the free access to law movement plays such an important part. It is harnessing the Internet to provide "the law" to anyone who seeks it out. The groups seeking to find what is the law are doubtless many and varied. They would include the following:

• Firstly and fundamentally, one group would be those who are directly entrusted with enforcing the law, namely the judges. It may sound strange to suggest that judges do not know the law. One would have expected that knowledge would have been acquired during training prior to appointment as a judge. But in many countries of the world, and particularly so in the Asian region, legal systems are undergoing enormous transformation at a great pace. Economies are changing. Countries are entering bilateral and multilateral trade agreements. Obligations are being assumed by developing countries to enact laws which reflect international legal norms governing internal and external trade. Laws have to be enacted to regulate markets which are new and unfamiliar. In this environment, the legal world judges may have become familiar with during their training is not the legal world they now have to contend with as judges. Obviously within developing countries attempts are made by government agencies, including courts, to disseminate information concerning the law to the judges. However the Internet probably remains the most readily available and potentially reliable source of information for this group. All the better if it is free. I will give an example drawing on my own experience a little later.

• Another group is lawyers representing and advising individual citizens, domestic businesses and international corporations. Essentially for the reasons just discussed in relation to judges, lawyers need access to a source which will provide knowledge of the law as it currently stands. While commercial legal publishers probably provide, in one form or another, legal information which can be accessed by lawyers, that access is often expensive and unaffordable.

• Another group or groups are academics and civil society organisations. They play a vital role particularly in developing countries where legal systems are in transition, in ensuring that the law and the institutions administering it develop in a way that is just, fair and transparent. To assess this, the law needs to be known. Again, all the better if it is free.

• Yet another group is the citizens themselves. It is obviously unrealistic to expect that, as a matter of course, citizens will assiduously access sites on the Internet to develop a better understanding of what are the laws which govern their lives. What is important, however, that the opportunity exists for them to do so. They may be motivated by curiosity. They may be motivated by a particular personal need. That may arise because they may be involved in a legal dispute or caught up in the criminal process. Again, it is really unarguable that this access should be free.

I will illustrate some of what I have just said by referring to a particular project which I have been involved in since 2001 in Vietnam. AusAID agreed in 2004 to fund the creation of a bench book for the Vietnamese judiciary. The bench book was launched in 2006. Six thousand hardcopy looseleaf versions were printed and distributed, a thousand CD-ROM electronic versions were distributed and it was placed on the Internet.

Vietnam is a country of over 80 million people about half of whom are probably less than 30 years of age. It has over 600 courts and of the order of 5000 judges. Since 1986, its economy has undergone radical change. So too has the legal system which is most recently rooted in a socialist civil law system. The law changes almost weekly and significant changes to the law occur at least annually. The law takes many forms. There are laws passed by the National Assembly or committees of the National Assembly. The Prime Minister, Government departments and Ministers regularly issue normative legal documents. Resolutions concerning legal issues arising in legal proceedings, both procedural and substantive, are passed by the Judicial Council of the Supreme People's Court. A constant refrain of lawyers in Vietnam is that it is extraordinarily difficult to ascertain what is the applicable law which is to be brought to bear on any given situation or transaction.

The bench book aims to assist judges to navigate, as one of its objectives, the sea of normative legal documents. The bench book seeks to explain to judges how they should approach particular legal problems. It identifies the applicable laws, both procedural and substantive, and has hypertext links to the text of those laws. Most significant at least from my perspective, is that the bench book is on the Internet both in English and Vietnamese, though hard copy and CD-ROM versions have also been distributed. It is now available through AsianLII. It is free. It provides a vehicle for judges, lawyers, academics, civil society organisations, the people of Vietnam and elsewhere to better understand the laws of Vietnam and how they might be applied by the courts in that country. The bench book can presently be found not only on AsianLII (which recorded approximately 150,000 hits in the period March 2007 to April 2008) but on its original site . It will shortly be housed on a new Supreme People’s Court website , the creation of which is being funded by the United States.

AusAID has recently funded a revision of the original bench book which is presently underway. One of the first things done in the revision project was to undertake a survey of bench book users, obviously focusing principally on the Vietnamese judiciary. In terms of judicial hierarchy, the lowest level of courts is the district courts, next in the hierarchy the provincial courts and at the apex, the Supreme People’s Court.

Based on the survey responses, 90% of judges in 269 participating district courts received the hard copy version of the bench book. At the provincial level, 90% of the 1194 judges in the participating provincial courts received a hard copy version of the bench book.

Eighty percent of the participating district courts and 85% of participating provincial courts reported receiving copies of the CD-ROM of the bench book. However, as only one CD-ROM version of the bench book was sent to each court there were problems for some judges in accessing the CD-ROM version.

A key finding from the survey questionnaire is that only 33% of participating district courts indicated that they had a legal database and library facilities at their court. Only 50% of provincial courts participating in the survey said that they had complete and updated legal documents available for their judges. This data supported the view that the electronic version of the bench book, and in particular the CD-ROM version, is potentially extremely valuable for judges across Vietnam if it is able to provide an updated and comprehensive source of legal references.

Other key findings from the evaluation are as follows:

• 92.5% of participating provincial courts and 72% of participating district courts reported that they found the bench book very useful, practical and relevant to their job.
• 91% of district and 92.5% of provincial courts have computers and the majority of these have CD-ROM drives. 57.5% of participating provincial courts and 40% of participating district courts reported in the survey questionnaires that they were frequent users of the electronic versions of the bench book (that is, that they used the bench book at least once a week). These figures indicate that the electronic versions of the bench book should be frequently updated and include as much legal reference material as possible through hypertext links to enhance the value of the bench book to Vietnamese judges. The project team is exploring the possibility of regular updates of the bench book being able to be downloaded from the website by Vietnamese judges and court staff onto CD-ROM. This will mean that judges across the country with access to the Internet will be able to obtain updated CD-ROM versions of the bench book without waiting for these to be distributed by the Supreme People’s Court.

The revised bench book will seek to achieve two other objectives. The first is that all decisions and resolutions of the Judicial Council of the Supreme People’s Court of Vietnam and all official letters interpreting law issued by the Supreme People’s Court will be uploaded on to the website housing the bench book and hypertext linked to the bench book. The second is that there will be an online discussion forum on the bench book website so that judges can discuss and exchange their views on the bench book.

I leave the bench book project for a moment but I will return to it again shortly. Access to law and all the more so, free access to law, can play an important part in promoting judicial transparency. I am here referring to the publication and wide dissemination of the reasons for judgment of judges and courts.

In a speech delivered in China in 2003, the Chief Justice of the Supreme Court of New South Wales, Spigelman CJ spoke on the theme that ‘[t]he rule of law requires that laws are administered fairly, rationally, predictably, consistently and impartially’.[6] Those overarching values, on his Honour’s analysis, made the giving of judicial reasons essential – moreover, they made a reasoned, explicit and methodical statement of the steps leading to the reasons an indispensable incident of a system judicial adjudication.[7]

Indeed, the common law recognises an obligation resting on a judicial decision-maker at first instance to give sufficient reasons for his decision to facilitate an aggrieved litigant’s exercise of a right to appeal.[8]

Five matters lie at the heart of common law jurisdiction’s insistence upon the giving of reasons for judgment:

• Informing the parties to the litigation before the court of their rights, duties, and obligations and the reasons leading the judge to find them as she did;
• Transparency in the judicial process – linked, in broad terms, to judicial independence and impartiality;
• So as to leave parties armed with sufficient account of a judge’s reasons for judgment that they may lodge an appeal, on questions of fact or law or both;
• So as to give judges an opportunity to comment upon the operation of the law as it stands, and to suggest legislative (or other) reform of it;[9]
• So (especially in the case of written reasons) as to impose discipline upon the judge, to develop the law methodically and by reference to decided cases.[10]

It has been said that transparency in judicial reasoning is not given such prominence in civil law jurisdictions. However, the doctrine of stare decisis or precedent which so permeates the common law, generally has no formal operation in civil law.

Nonetheless, one commentator has predicted that ‘[w]ith computerised access to prior decisions, it seems likely that civil law systems will eventually develop systems of precedent that will resemble the Anglo-American systems’.[11] But even before the advent of electronic databases. There was a view that ready access to decisions would ameliorate the strictness of civil legal theory. One commentator's prediction, made in 1955, was that:

‘[i]f cases are well reported and the final court of appeal strong, there is a natural tendency for precedent to become more and more binding; for the lower courts will look to the highest court for a lead and the latter will feel bound to preserve some consistency in its decisions. The older the civil code in force, the more powerfully this tendency will work, partly because the influence of the jurists who made it and gave the original interpretations will be weakened with the lapse of time.[12]

I personally believe that the distinctions between civil law systems and common law systems will continue to diminish over time. Vietnam is an example of a civil law system which is now adopting some aspects of the common law, at least procedurally. I also believe that transparency in judicial decision-making is best achieved by the publication of reasons whether in a civil law system or a common law system. The bench book and the related new Supreme People’s Court website will contain the reasons for decision of the Supreme People’s Court in important economic or commercial cases which have not, to this point, being publicly available. Probably the class of cases will widen over time.

The publication of reasons of courts in the Asian region which have not, to this point, been published is not a phenomenon unique to Vietnam. To similar effect is another project with which I have been involved in Indonesia, again funded by AusAID. It is associated with the implementation of a Memorandum of Understanding between the Supreme Court of Indonesia and the Religious Courts, on the one hand, and the Federal Court and Family Court of Australia on the other. It has led to the Supreme Court and the High Religious Courts (Family Courts) of Indonesia publishing for the first time and on the Internet a selection of judgments which have hitherto not been publicly available. More widespread publication of a larger range of judgments will follow. Again they will be available free and available through AsianLII.

The rule of law can be described in many ways. It is, as a concept, given varying content depending on the viewer's perspective. It is viewed by some as comprehending the ends that the rule of law is intended to serve within society such as upholding law and order or providing predictable and efficient judgments. It is viewed by others as focusing on the institutional attributes necessary to actuate the rule of law such as comprehensive laws, well functioning courts and trained law enforcement agencies. From either perspective, access to the content of the laws of a country contributes to the development and maintenance of the rule of law. The rule of law embodies the basic principles of equal treatment of all people before the law, fairness, and both constitutional and actual guarantees of basic human rights. A predictable legal system with fair, transparent, and effective judicial institutions is essential to the protection of citizens against the arbitrary use of state authority and lawless acts of both organisations and individuals. In some states with weak or nascent democratic traditions, existing laws are not equitable or equitably applied, judicial independence is compromised, individual and minority rights are not realised, and institutions have not yet developed the capacity to administer existing laws.[13] I think I can say that unarguably, this circumstance will be achieved when information concerning the law and the processes that attend its implementation, are readily available to all.

I return to the proposition I started with at the beginning of this paper. It was that in any system of government and necessarily so in a democracy, it is vital that citizens can readily ascertain what the laws are which govern their personal lives, the commercial world in which they may work or operate and more broadly the community in which they live. As the 2000 year old extinct language I spoke of earlier would say in another maxim found in English and Australian law: res ipsa loquitur. Loosely translated this means the proposition speaks for itself. The proposition is self-evidently true. Embodied in the proposition is an outcome that is best achieved through free access to law.