P N Bhagwati - An Australian Appreciation

Date: 20 December 1998
Author: The Hon Justice Michael Kirby AC CMG Justice of the High Court of Australia
Type: Book Chapter
Subject: Law
Citation: Collected Speeches of Justice P N Bhagwati

COLLECTED SPEECHES OF JUSTICE P N BHAGWATI P N BHAGWATI - AN AUSTRALIAN APPRECIATION
The Hon Justice Michael Kirby AC CMG^*

ENCOUNTER

I can remember clearly my first meeting with Justice P N Bhagwati (or the "Chief", as so many judges like me still affectionately and respectfully call him).

I had just completed a decade as the foundation Chairman of the Australian Law Reform Commission. I was beginning a new decade of service as the President of the New South Wales Court of Appeal - the busiest appellate court in Australia. It was late 1984. Justice Bhagwati, the intrepid traveller, was making a visit to Sydney, Australia. At a judicial reception, we fell into conversation. I noticed at once his sharp intelligence, incisive voice, boundless energy and intellectual curiosity.

I told him of a case which had just been argued before the Court of Appeal. It concerned the question whether, by the common law in Australia, an official, acting under legislative power, was obliged to provide reasons for a decision adverse to the interests of an individual. Australian courts had held that a judicial officer was obliged to provide reasons for an adverse decision. However, the obligations of administrators were much less certain. In England (from which Australia's common law derived) Lord Denning MR, like Justice Bhagwati, a champion of reform, had concluded that, sometimes, administrators were so obliged. But the majority judicial opinion in that country suggested that there was no such obligation, unless Parliament specifically provided for it. The position had been complicated in Australia by the passage of Federal and State legislation in other jurisdictions affording persons affected by adverse decisions of administrators, the right to obtain reasons for such decisions. However, that legislation did not extend to the State of New South Wales. Did the common law fill the gap?

As I outlined the problem to Justice Bhagwati, I could see his clear eyes, with luminous intelligence, following my exposition of the problem. He put his delicate hands into a position of repose. And then he began to explain to me developments of the law in the Supreme Court of India. In particular, he detailed the outcome of two leading cases: Siemens Engineering and Manufacturing Co of India Ltd v Union of India and Maneka Gandhi v Union of India.

Newly inspired by this encounter, I went back to my task of writing my opinion in the case in hand. I reviewed common law decisions in Australia and England, in the United States of America, Canada, New Zealand and Fiji. By reference to the unique briefing provided by a uniquely well informed colleague, I turned to the jurisprudence of the Supreme Court of India:

Siemens

Maneka Gandhi

Wiseman v Borneman

Alas, when the majority decision of the Court to Appeal in favour of the right to reasons was taken on appeal to the High Court of Australia, that Court unanimously reversed our decision. Giving the leading judgment, the Chief Justice of Australia (Sir Harry Gibbs) said that there was no general rule of the common law or principle of natural justice that required reasons to be given for administrative decisions, even those made in the exercise of a statutory discretion and liable adversely to affect the interests, or defeat the legitimate or reasonable expectations, of others. As to the decisions of the Supreme Court of India to which I had referred, Chief Justice Gibbs was unimpressed:

Seimans Engineering and Manufacturing Co of India

Ltd v Union of India

So my first intellectual encounter with Chief Justice Bhagwati (as he had become) led, ultimately, to no affirmative outcome. And yet is this so? Every decision of the courts - and especially of the higher courts of every country - contributes to the intellectual ferment that is the system of the common law in action. The idea that it should be attributed to the legislature, in affording a discretion or power to an official, to act under statutory warrant, that such official must give reasons to those adversely affected by such decisions, continues to argue for the intellectual support of judges in Australia and beyond. The settled authority of the Australian courts is that stated by Sir Harry Gibbs. Until reversed by legislation or later judicial decision, it must, in Australia, be obeyed. But the common law is a marvellous creative instrument of justice. It is pushed forward, and its boundaries are extended, by lively intellects such as Justice Bhagwati's. I will never forget that first encounter. In many subsequent meetings, I have never lost my admiration for the lively intelligence and deep commitment to justice of the "Chief".

EVOLUTION

In the years since 1984, I have met Justice Bhagwati on many occasions and worked closely with him in international meetings and colloquia. But no enterprise was so important as that which he summoned together at Bangalore in 1988. That was where the Bangalore Principles on the Domestic Application of International Human Rights Norms were formulated. Here was Justice Bhagwati, in brilliant symbiosis with Mr Anthony Lester QC of England (now Lord Lester of Herne Hill). The impact of that meeting in Bangalore in 1988 had been enormous. And it is continuing.

Justice Bhagwati was puzzling over the relationship between the growing body of international human rights law and the domestic law of each nation state. The orthodox view of the common law of England had been that the two systems of law were separate and worked on different planes. But could this "dualist" theory be maintained in a world in which international human rights law was growing so rapidly? Should a reconciliation now be attempted between the two systems of law, out of a recognition of the necessity that each should work in harmony with the other?

As the judges met in Bangalore, under the guidance of Justice Bhagwati, a consensus was fashioned which was to have great influence throughout the common law world. The Bangalore Principles acknowledge that, international law is not part of domestic law unless duly incorporated into domestic law - usually by valid legislation. But the principles go on to suggest a new and innovative rule which can promote harmonisation of the two systems. Thus, if legislation is ambiguous, it is consistent with the function of a judge in a common law system to resolve the ambiguity by reference to international human rights principles. If there is a gap in the common law, it is consistent with the functions of such a judge to have regard to established rules of international law, particularly as to human rights, in filling the gap and providing the development of the common law relevant to the case in hand. This was not revolution. It was evolution. As befitted a distinguished and experienced judge, whose life had been dedicated to the rule of law, Justice Bhagwati did not turn established rules on their head. He provided a new and creative way by which the growing body of international human rights jurisprudence could be harmonised with the domestic law of the judge's own jurisdiction.

When I returned from Bangalore to Australia, and began to apply the Bangalore Principles, it caused not a few raised eyebrows (and some elegantly expressed denunciations of legal heresy). But it is interesting as I look back over the decade since Bangalore in 1988 to see the growing impact of the Bangalore Principles not only in Australia but in other lands which share the common law tradition. This is, as Lord Cooke of Thorndon has suggested, a law that is "undergoing evolution". In this evolution, we are all, in a sense, the disciples of Justice Bhagwati. His impact on the legal system of India was great and is enduring. But it was not enough. His insights had to be shared with a wider world, including with judicial and legal colleagues in Australia.

ENCOURAGEMENT

I therefore welcome the publication of the collected writings and speeches of Justice Bhagwati. Some great judges, who influence the development of law in their jurisdictions, have an even greater impact by their extra-curial writing. Justice Benjamin Cardozo, long-time judge, and Chief Justice, of the New York Court of Appeals, probably had greater impact in his later years, and in the years since his death, by virtue of his extra-judicial writing. In 1920, the Yale Law School invited him to deliver the Storr Lectures. These were published in his highly acclaimed volume The Nature of the Judicial Process. Subsequently he published two additional series of lectures, The Growth of the Law (1924) and The Paradoxes of Legal Science (1928). Deservedly, they won him international acclaim.

Justice Bhagwati already enjoys similar international acclaim. To rise to become the head of the legal and judicial system of the most populous nation on earth which lives by the rule of law and under constitutional authority, is itself a glittering achievement. But since his retirement from active judicial life, Justice Bhagwati has devoted his boundless energy to the work of the United Nations and the international human rights bodies which stimulate, criticise and inspire the champions of human rights around the world. Most notably, he has served as a member (and lately Vice-Chairman) of the United Nations Human Rights Committee, a most influential position to which he was recently re-elected. He has been Chairman of the Board of the Centre for the Independence of Judges and Lawyers in Geneva. This body, a creation of the International Commission of Jurists, brought us into even closer association during the time that he was Chairman of the Centre and I was President of the Commission. He has limitless enthusiasm for good and righteous causes. He continues to instruct young lawyers and young judges in the ways by which they can convert the noble sentiments of human rights into their daily professional work. He is, in fact, an inspiration.

I do not doubt that Justice Bhagwati's writings and speeches will bring the subtle and idealistic working of his mind to the attention of a still larger audience, so that his influence becomes even more widespread and enduring. It is a matter of pride for me, as an Australian judge and a judicial brother, to be associated with this most timely work. I pay tribute to the Honourable P N Bhagwati, my teacher.