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A Tribune Special
Entry of foreign law firms into India |
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Punter’s game in China
Profile
On Record
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A Tribune Special Congress rides the crest of the Prime Minister’s performance wave, says O.P. Sabherwal NOT to indulge in self-glorification but to better dissect the electoral riddle, let me recall an observation this writer made when the election process commenced in mid-April.
“The Indian electorate has an uncanny wisdom, throwing up surprises in every parliamentary general election. The last elections in 2004 certainly resulted in one of the biggest upset wins for the Congress – a victory when it was down and out…What kind of a surprise will Election-2009 throw up?” (The Tribune, April 15) The answer has come now – surprises galore, throwing the professional poll analysts and exit channels into confusion, if not oblivion. And what a verdict! For a full month, the professional analysts had expounded the “hung Parliament” theme – a neck-and-neck race between the incumbent UPA and main challenger NDA. An unstable government, unbridled power grabbing, unprincipled electoral groupings was the name of the game. But the Indian voter was wiser. Not an unstable government but the prospect of stability at the Centre, and continuity of effective policies, meeting the daunting challenges that this country faces, with a full thrust. A strong Centre is accompanied by a resurgence in the states such as Bihar under Nitish Kumar and Orissa under Naveen Patnaik have thrown up. The political scenario and inter-play of political parties can now be cleaned up, ideological principles and meaningful policies placed on a higher pedestal. The question has to be asked: what produced these spectacular results? In a scenario such as this, there are many factors at work, but two cardinal factors need to be pinpointed as they tend to be underplayed. In uplifting the Congress to its new-found stature, a powerful factor that has been at work at the grassroots countrywide is the performance of the Manmohan Singh government. Not anti-incumbency but the reverse, a performance wave, a Manmohan wave of a sort, has been at work at the grassroots countrywide. A “weak” Prime Minister has delivered strong results in key areas. In economics, pursuing the development agenda, and blunting the impact of global recession; in providing succour to weaker segments of society — a Rs 9,000-crore loan waiver to farmers, and a massive, the most effective poverty alleviation scheme hitherto, National Rural Employment Guarantee Scheme (NREGS), even though its full fruits have yet to reach the rural masses; and by far the most effective forward thrust to Indian science and technology, the Indo-US civil nuclear accord, “negotiated brilliantly” by Indian scientists as Strobe Talbot observed, liberating India’s nuclear capability from a stifling sanctions regime. This “performance” wave has laid the base for a bigger upswing in these key areas in the years ahead. Shining like a bright star in the electoral scene has been a second factor at play — the Rahul factor. The contribution of Rahul Gandhi in bringing dynamism, the youth and self-confidence to the Congress has to be underscored. This is notably displayed in the most populous state – Uttar Pradesh – where the virtually extinct Congress has been restored to a status higher than the BJP and Mayawati’s BSP. This miracle has been made possible by Rahul Gandhi’s daring decision to make the Congress stand on its own legs in UP without crutches and shoddy alliances. While the Congress resurgence as India’s leading political party has been a major outcome of election-2009, the states scene has been enlivened by the two ostracised states — declared as the most backward — Bihar and Orissa. The message that has gone out from these states is “Perform or perish”. Not many of the Congress-ruled states can claim to live by this motto, which is the main cause of Congress disability in coping with problems of their respective states. That leads to their poor showing when faced with the regional push and pull. A more balanced Centre-State relationship might hopefully come about as a consequence. The debacle that the CPM-led Left Front has suffered is perhaps the worst in recent memory. The CPM leadership, especially its leader Mr Prakash Karat, is mainly responsible for this setback. Lok Sabha Speaker Somnath Chatterjee has described the CPM leadership as ‘narcissistic’ — adoring and loving its own heroic image, magnified by the glamorous TV channels in their quest for ‘hot news’. The CPM-led debacle is all-sided — against the Marxist prognostication in the first place, striking a blow against Centre-Left alignment against retrogressive forces. It is ironic but true that the CPM cleavage with the Congress began on the Indo-US civil nuclear accord which gives Indian scientific capability a big forward thrust. While Marx was “above all a scientist”, in Engels words, Mr Karat’s brand of ‘strategy and tactics’ has little place for such mundane matters as nuclear scientific capability. Lumpen (crorepati) proletarians such as Mayawati have a preference. The Indian political landscape will be poorer on account of the Left debacle, only balanced Centre-Left economic and political policies can take India forward, staving off global challenges that the country now faces. In particular, in shaping economic and foreign policies. It is characteristic of election-2009 that the debacle of the Left and Right — symbolised by the BJP — is simultaneous. However, just as the downslide of the Left creates an imbalance, the (moderate) BJP forces’ downfall carries the danger of reviving the extreme Rightist resurgence, such as the ideologues of the RSS threaten to implant. Let us hope that the Indian political scenario can be spared such dangers.
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Entry of foreign law firms into India WHILE addressing the Indo-EU Business Forum in London last year, Chief Justice of India Justice K.G. Balakrishnan stirred up a hornet’s nest by saying that the issue of allowing foreign law firms into India was being handled at the highest level. Discussion on this issue has always evoked a serious debate. Though India is bound under the General Agreement of Trade in Services (GATS) Agreement under the WTO to liberalise and open up its legal services sector for other member countries , till date successive regimes have been reluctant to take a clear-cut stand owing to a fear psychosis. Almost all the Bar Councils in the country are unanimous in resisting the entry of their foreign counterparts into India in any manner.Though India enjoys the distinction of having the world’s largest Bar, estimated to be one-million strong, it is almost unorganised as seven to eight lakh advocates are private individual practitioners. Of them, a large chunk struggle to make a living, either due to lack of professional adequacies including poor legal education, communication or transactional skills and the absence of infrastructural support to learn and develop themselves in consonance with contemporary needs and challenges. Adding to their plight is the lack of or no financial help from their seniors who enjoy monopolistic control over available legal and litigation work. As for the question of allowing foreign law firms to set up their offices in India, the proposal which is being vociferously opposed by the Bar Council of India, it is pertinent to mention that the Bombay High Court is already seized of this matter since 1995 on a petition filed by the Lawyers’ Collective. The Bombay High Court is examining whether the term ‘practice the profession of law’ under the provisions of Advocates’ Act and presently available only to Indian lawyers merely includes appearance before courts or tribunals or else it extends to giving legal advice as attorney, drafting legal documents and advising clients on legal queries. Though the Central Government has, in a counter-affidavit (September 2007), specified that the Advocates’ Act has nothing to do with foreign law firms coming to India, without the express consent of the Bar bodies, their entry and smooth working cannot be ensured. This writer is of the opinion that the Indian Bar should not be scared of the entry of foreign law firms into our country. For, they should understand clearly that their members are not going to adorn the wardrobe and usurp the role of Indian advocates. The countries of intending foreign law firms have already conveyed that they are only interested in establishing their liaison offices in India to advise their prospective clients on matters relating to legal documentation and transactions, expert consultancy in project financing, tendering legal advices to resolve commercial disputes through various modes including arbitration/alternative dispute resolution, issues concerning estimation and valuation in corporate matters, etc. Secondly, the entry of the foreign law firms into India would facilitate the introduction of a fresh brand of professionalism, competence and expertise that the legal profession here has failed to develop indigenously. Our advocates would be able to nurture and enhance their legal skills required to resolve disputes and issues in the present-age of universalisation of law. Undoubtedly, our advocates lack of necessary skills in areas of Intellectual Property Rights, Trade Marks, Patents, International Trade Law, Commercial Arbitration, etc as compared to their foreign counterparts. Nowadays, we have to largely depend on foreign law firms/ solicitors when our country has to fight or defend cases in international bodies like the WTO, the FAO etc. on cases of anti-dumping measures, monopolistic trade practices, tariff issues and so on. Furthermore, with the entry of these foreign law firms, our Alternative Dispute Settlement (ADR) mechanism, which hitherto has been an almost non-starter owing to a host of reasons, would be able to get a boost which would ultimately pave the way for a significant reduction of cases pending in our courts. Also, it would encourage resolving of fresh disputes at the pre-litigation stage itself. Last but not the least, the step would endeavour to convert our legal profession, presently almost unorganised, to a well-established and organised one on professional lines. Also with the entry of foreign law firms, there would be quid pro quo for our law firms to establish their offices in their countries as also necessitated under GATS agreement. It must be properly ensured that our advocates and law firms also get the same treatment in those countries whose law firms are permitted entry in India. In case of defaulting countries, our government must be at liberty to ask their firms to leave India. Though our government needs to initiate suitable steps to encourage and promote growth of new domestic firms to compete with foreign ones, ultimately a level-playing field must be ensured for the functioning of domestic and foreign law firms. It is noteworthy that much of the opposition to the entry of foreign law firms has come from Indian law firms who apprehend danger to their market share in the event of the entry of foreign players. Last but not the least, the opening of our legal services sector for foreign law firms would also prove to be a boon for our citizens and domestic organisations as they would be able to make a choice of the law firm they wish to hire for dealing/resolving their legal disputes. Ever since the banking, insurance, telecom and aviation sectors have been liberalised in line with the policy of liberalisation, privatisation and globalisation, it is the common man who has been the beneficiary. There is the availability of a variety of choices in the market. And the abolition of monopoly of one player has made the customer the king. Of course, legal profession in the country is regarded as a noble profession and not commercial activity in the strict sense of the term. Consequently, such suitable safeguards are indispensable for maintaining the sanctity of the legal profession while liberalising it. In November 2007, the All India Conference of Bar Councils in Kochi, inter alia, resolved that the government should not open the Indian legal profession to foreign lawyers and law firms now. Even though it is true that the time is not yet ripe for throwing our doors open for foreign players in the legal sector, the government would do well to take some initiatives in this regard. These measures could include limiting the entry of foreign law firms in specified areas in the beginning and providing mandatory tie-up with domestic law firms up to an optimal extent to protect the larger interests of our legal fraternity in general and our present nascent-level organised law firms’ community in particular. Significantly, Asian countries like China, Japan, Singapore, Indonesia and Malaysia have ensured a smooth entry of foreign law firms into their territories. They have successfully liberalised their legal services sector whilst safeguarding the interests of their legal fraternity. India ought to study these models and replicate the most successful one. The writer is Advocate, Punjab and Haryana High Court
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Punter’s game in China
Interestingly, President Hu Jintao’s “harmonious society” is not featuring as prominently in the official Chinese propaganda as it did a while ago. It is not surprising, though, considering that China is experiencing considerable social unrest in different parts of the country. And it is not just due to the current economic downturn, which, certainly, is making things worse. The economic slowdown, for instance, has worsened the employment situation, sending millions of rural migrants back to the countryside where things are even worse. The diversion of resources from the rural hinterland to develop an industrial economy had already created a wide gap between the countryside and the urban areas. Apart from arbitrary local taxes and entrenched corruption among party hacks, people in rural areas had their land taken away (with little or no compensation) to make it available for the needs of the industrial economy. The diversion of water for urban use and/or its pollution from industrial chemical wastes further damaged rural economy and living. It was such pillaging of rural assets to subsidise urban economy, which forced millions of rural migrant workers to flock to the urban industrial centres in search of jobs. And since these workers were not entitled to social and legal benefits of urban residency, they were easy prey for employers and virtually anyone else powerful enough to screw them. They were paid abysmal wages (and that too held in arrears in so many cases), with little or no recourse to any legal process. That they still came in millions to work in urban ghettoes, is a sad commentary on the state of the rural economy. This is how China’s economy became internationally competitive, making it the factory of the world.Commenting on the axis between the party elites and developers, Zhao Ziyang (who was deposed as the party general secretary for opposing the 1989 Tiananmen massacre and then spent rest of his life under house arrest until his death) reportedly said (Zhao Ziyang: Captive Conversations by Zong Fengming):“The government seizes land from the people, pushing the price down to a minimum, then hands it over to developers to sell it at a huge mark-up…” The result is: “…we now have a tripartite group in which the political elite, the economic elite, and the intellectual elite are fused.” And it is, “This power elite (which) blocks China’s further reform and steers the nation’s policies toward service of itself.” But popular resistance has been building up for a number of years now. In December 2005, for instance, a riot in the southern town of Dongzhou against plans to build a power plant on land taken without compensation, resulted in the killing of 20 people fired on by the security forces. This is believed to have been the first such incident of large-scale killings by security forces after the 1989 Tiananmen square massacre. Lately, there have been instances of protests organised across some provinces, as in the case of taxi drivers’ strike against the high cost of renting their cabs. The cumulative economic and social pressures over the years, and the desperate need for some political outlet to air their grievances, is starting to even fray the tripartite bond between the “political elite, the economic elite, and the intellectual elite” of Zhao Ziyang’s description. The most telling example was the signing of the Charter 8 last December by several thousand Chinese intellectuals and others seeking the end of one-party rule and its replacement by real democracy based on freedom, respect for human rights, equality and rule of law. As usual, the Chinese government tends to further tighten the system to suppress dissent, while obfuscating the issue of political freedom with platitudes. Its recent example is the so-called 2-year human rights action plan (National Human Rights Action Plan of China, 2009-2010) to make government more responsive to popular concerns about governance. But the document is silent on the question of freedom, an independent judiciary and political plurality by way of competing political parties to challenge the monopoly of the ruling Communist party. The document focuses instead on improving the situation within the existing system of one-party rule. The point, though, is that in theory the Chinese Constitution already incorporates democratic provisions. But, in practice, it doesn’t work like this because the party interprets it to suit its own power imperatives. The question then is: why would anyone believe that the new action plan (notwithstanding its specified 2-year duration) would work any better than the much comprehensive Constitution of the country? As an example, all the provisions of the Constitution are easily nullified through the system of administrative detention without trial, imposing sentences like “re-education through labour”. The arbitrariness of the system under one party-rule, where everything goes if the party or its minions so decree, has slowly built up resistance within the populace to corruption and capriciousness of the powers that be. Li Datong, a Chinese political analyst, recently told a visiting scholar in Beijing, “The government has been skilful in convincing the middle class it’s futile to protest…but you only need one spark for that to change.” Whether the present economic crisis would provide that spark is difficult to say. What one can say is that it, certainly, is another building block, and a significant one at that, in the growing social unrest in the country. Because the political system is so top heavy and unresponsive, there are no built-in safety valves to let off steam through mass protests. And there is very little transparency and accountability. In a recent investigative reporting of China’s mining disasters with workers killed all too often, the New York Times quoted Hu Xingdou, an economics professor at the Beijing Institute of Techonolgy: “We don’t have the grassroots democracy; we don’t have independent labor unions; we don’t have checks and balances, we don’t have any system of official accountability.” Hu’s observation sums up what is wrong with China in essence. Which means that unless the political system develops grassroots democracy, it will remain prone to periodic sudden shocks. And in the absence of institutional democratic shock absorbers like popularly elected assemblies, a free media, independent judiciary and rule of law, China will remain a punters’ game.
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Profile Ten years back when Naveen Panaik became Orissa’s Chief Minister, he was new to politics, considered immature and suffered from a handicap; he could not converse in Oriya. But he picked up the ropes fast, matured politically and proved smarter than the BLP leaders, his ally for the last 11 years. He dropped a bombshell when an emissary of L.K. Advani met him in March and was tersely told that BJD could not offer more than 31 Assembly and five Lok Sabha seats to the BJP. Naveen did not lose his composure even for a moment while telling Advani’s emissary that the alliance with the BJP was over. The BJP leaders, who thought Naveen to be their most dependable ally, were shocked and changed their tunes, calling him a “serial killer” and “betrayer”. The BJP’s harsh words notwithstanding, there is a grudging admiration for the BJD Chief in the BJP circles. He is seen as a smarter politician compared with much senior ones in the BJP. More important, people see him as a clean politician, who is striving to end corruption. What brought the BJD and the BJP together in 1998 was their common enemy, the Congress. But in an alliance one party grows at the cost of the other. The BJP was never comfortable with a situation that demanded that it permanently remain a junior partner. It was a matter of time before the opportunistic alliance ended in divorce and it did. Naveen has aristocratic upbringing and his pursuit since he graduated from the Delhi University has been history and literature. He also evinced keen interest in Ayurveda and wrote a well researched book on the healing properties of various plants grown in the sub-continent. Having been brought up and educated in Delhi and sojourned in the United States for years, Naveen hardly looks an Oriya in conversation or appearance. His performance as the Union Minister for Steel had been better than many of his colleagues. He created a record having won three successive Lok Sabha elections. His illustrious father, Biju Patnaik, had a domineering personality and strode the political scene like a colossal but Naveen is timid and remained a bachelor. His elder brother is an industrialist and the sister, Gita Mehta, a well known writer. Naveen, like his sister, has a literary bent. Among his many friends abroad was Jacqueline Kennedy Onassis and in India they included erstwhile Rajas and Maharajas. Jacqueline was Editor of A Second Paradise, written by Naveen, depicting the courtly life in India from 1590 to 1947. The book was, apparently, produced to mark the Festival of India in Washington in 1985 and to coincide with Rajiv Gandhi’s visit to the US. The Patnaiks were quite close to the Nehru-Gandhi family. Biju was a friend of Indira Gandhi though they later moved apart politically. Naveen was a friend of both Rajiv Gandhi and Sanjay Gandhi. Mrs Gandhi would send her two sons to Biju’s house to keep company with Naveen who later moved to the Doon School. Naveen’s another book, The Garden of Life, is on an altogether different subject. It deals with the healing plants in India used for preparation of Ayurvedic medicines. How Naveen got interested in herbs, having medicinal value, is shrouded in
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On Record
The ethnic situation in Sri Lanka has been a matter of concern for the international community, particularly India. Now that the LTTE appears to have been wiped out and its supremo V Prabhakaran killed, Sri Lanka is undertaking a massive rehabilitation programme to help the displaced people. In the midst of his busy schedule, Sri Lankan High Commissioner to India Chrysantha Romesh Jayasinghe spoke to The Sunday Tribune. Excerpts: Q: How do you plan to implement the devolution package? A: There will be a vigorous process for rehabilitation and reconstruction in conflict affected areas. There will also be an effective implementation of the process for devolution and empowerment of all communities in the island that have already been incorporated in our Constitution which could not be implemented in the North and the East as long as these two parts were affected by terrorism sponsored by the LTTE. In May last year, provincial council elections were held in the Eastern province in keeping with the provisos for the devolution after the LTTE was flushed out from that part of the island. The Chief Minister of the Eastern province is a relatively young gentleman from the Tamil community. Now that the LTTE is no more, provincial council elections in the North will also follow. The process of rehabilitation and reconstruction has already started and several hundred IDP families displaced in places like Mannar have already been rehabilitated. The LTTE indiscriminately placed landmines in all the areas it tried to dominate. De-mining is time-consuming and must be undertaken carefully. Sri Lanka wants to do this task expeditiously and thoroughly. It is likely that the authorities will seek a certification from the UN systems that the de-mining has been completed according to sound international norms so that the people can go back without any constraints. Q: What about those who have surrendered? A: The President and the Lankan Government have made it clear that they perceive low level LTTE cadres who obviously constituted the vast majority as having been misled by the terrorist ideology of the leadership. The government, accordingly, looks forward to rapidly rehabilitating them and enabling them to fully reintegrate into the normal life. Q: Did India play a positive role during the war against the LTTE? A: Yes, throughout this very difficult quarter century when Sri Lanka faced the terror of LTTE, India took a resolute stand that the undivided nature and the territorial integrity of Sri Lanka must always be respected. All citizens of Sri Lanka will continue to remember with appreciation this principle position adopted by the government and the people of India. Q: What role do you envisage for India in the rehabilitation and reconstruction programme? A: There is a great scope for India to contribute to the forthcoming rehabilitation and reconstruction programme. We remember with gratitude the very timely assistance that India rendered for rehabilitation in the wake of the 2004 tsunami. The Indian authorities have an extremely good understanding of the practical ground realities and what could work best in the given situation. The same benefit will apply when India progressively accentuates her rehabilitation assistance to the displaced people. We are also appreciative of the generous rehabilitation assistance made by Prime Minister Manmohan Singh. A: No, the LTTE was an organisation which was totally controlled by one personality. It never allowed any space for a second rung of leadership. Now the world has seen that its leadership had been taken out. So it has absolutely no command and control structure. Secondly, we have spoken of the implementation of devolution package, efforts for strengthening national amity and the reintegration of the low levels cadres of the LTTE back into Sri Lanka’s life and society. Therefore, there will be no possibility of disaffection that any ideology of the LTTE would try to
exploit.
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