All through the conference I have been hearing speakers, speaking about what has happened in the past. Law, Judges, Lawyers are mostly doing rear view mirror driving, my efforts today is to do a forward view driving, keeping an eye on what has gone by. The canvas of the subject in hand is very wide – Democracy, Politics and Law – The judiciary as the last line of defense, so I have put it under five heads – The Global shift, shift leading to new orientation of Democracy and Politics, the new orientation leading to conflicts, Rule of Law and the Role of Judiciary
The Global Shift
The majority of the world has moved into Globalization 4.0. Globalization is free movement or flow of people, goods, information, ideas and services beyond national boundaries and across the globe, without restraint. Marshal races fought wars and became victorious using their muscle power or aristocracy of the sword. They looted, pillaged, plundered and raped other nations and transported people as slaves during Globalization 1.0. Expansion of religion and conversion of others in their fold also led to movement of people across the globe during Globalization 1.0.With trading and rise of currency, by human beings who created relationship on the basis of reason, merchandise and goods moved across the seas and land, during Globalization 2.0. Information, Ideas and knowledge moved across the globe during Globalization 3.0. Internet provided seamless infrastructure to this transmission.
Now, we have set foot in Globalization 4.0 marked by the movement of services globally, without movement of people or infrastructure, with high speed mobile internet, big data analysis, cloud technology and artificial intelligence. From Business Process Outsourcing to Knowledge Process Outsourcing to Legal Process Outsourcing there is explosion of e-services like Netflix, Fiverr, Up Work and Mechanical Turk etc. A 2015 World Bank study suggests gig economy is set to grow to US$ 25 billion by 2020. There are 167 listed collaboration platforms like Basecamp, Teamwork and Trello etc. Language translation services are helping below poverty line income people to enter the global economic mainstream.
Post 2015, nations are making efforts to take lead in the Fourth Industrial Revolution at national level and are making all out efforts to compete in meaningful production of information, ideas, goods and services using artificial intelligence. There is a simulated arms race amongst technology companies in machine intelligence and learning.
All this is happening because individuals are moving from the third dimension to the fourth dimension. Human beings who were living as individual nomads during their first dimension existence, as tribes and town dwellers in their second dimension existence and as city and metro dwellers in a nation with a defined territory in the third dimension, have now moved beyond the physical, man-made boundaries into a metaphysical world. Physical location is losing its significance and human beings are finding themselves in more harmony with fellow beings irrespective of their race, color, religion, national origin, citizenship status, gender identity, sexual orientation, age or disability. DNA tests have broken down exclusivity or superiority of blue blood or superiority by ancestry, which was deeply ingrained in the leaders who pushed their factions to great violence and wars.
The impact of this concurrent and simultaneous transition and its fallout is felt by all institutions, models of governance, politics, law and individuals. From United Nations to family structures, from banking to crypto currency wallets, the way wars are fought to carrying out agriculture, from terrorism to pick-pocketing, from global politics to village level affairs, from head of the state to the rag picker every structure is undergoing reorientation.
All these shifts and transitions and their impacts are directing citizens of the world to move towards a global democracy, global politics and global law, a border-less homogeneous world, where it is possible in the words of Mahatma Gandhi, and he is all over Africa, to ‘wipe out every tear from every eye’. The pessimists say that we are living in a VUCA world, a world that is Volatile, Uncertain, Complex and Ambiguous. The realists would say that we have to work together to create a SRIM world, a world that is Stable, Reliable, Inclusive and Multidisciplinary, while the optimists like me, would say that we are moving towards a HITAA world. A world that is more Harmonized, Integrated, Transparent, Accountable and Abundant.
Shift is leading to new orientation of Democracy and Politics
Effective political power in democracy can no longer be assumed, because of inclusiveness, demographic changes, immigration, polarization and unbundling of power. Power will have to be shared, bartered and won over by reason, with the new awareness dawning, using diverse forces, support and assistance at global, national, regional and local levels. Democracy has become complicated and even shambolic, as at many places there is emergence of singly party, with an authoritarian ruler. It looks as if Parliamentary democracy is under threat globally.
With adult franchise in place in all the democratic countries in the world all democratic governments are formed by the people and of the people, but they are failing to be for the people. Because people here are not the top social elite brass, but all those who were pushed back as backwards and underdeveloped have right to vote. The coalition of all the so called under privileged classes are assuming power and become elected majority and those who have continued to be in power for centuries find themselves to be out of power and reduced to an insignificant minority. Divide and rule and ruling by escalating conflicts amongst the minorities is being substituted by inclusive welfare, growth and development, by the locals who have assumed power.
Politics now, is not just a matter of sheer muscle power, the aristocracy of sword, supremacy of a race or race of war heads. Global harmony and consensus have become essential and this accord can only be reached by clearly understanding the larger picture and establishing the nexus between the goal and the path, between the object sought to be achieved and the process of achieving the object. Both the process and object has to reasonable, just and proper and their outcome should not lead to exploitation, suppression of any will or rise of unheard cries. Politics by authoritarianism is being replaced by politics by reasoning and a reasoning which is not limited to welfare of a class, race or gender, but for the welfare of one and all. All those who were pushed back over centuries are emerging back and are reaffirming their existence, women, blacks, browns, yellow, reds, LGBTQ etc. and there is no reversal of this fourth wave
The new orientation is leading to conflicts
All the phases, segments and stages of Globalization 1.0, 2.0 and 3.0; First, Second and Third Industrial Revolution; First, Second and Third dimension people; First, Second and third wave movements have not disappeared into oblivion. All of them have a quantum existence in a lateral spiral time along with the Fourth. Conflicts between those who exist at different levels are becoming sharper. Conflicts are emerging every moment between those who are still holding a tribal attitude; are fighting for expansion of territories, operating monopolies and creating cartels; those who find it impossible to accept, adapt and acclimate with the new emerging economic and social order and the evolving global dynamics forging ahead relentlessly.
Mass production of quality products by certain countries at a non-competitive price will certainly lead to wiping out of certain jobs and industries in other countries, which in turn will lead to mass unemployment and social unrest. By 2022 the average human task hours will be reduced from 71 % to 58 % and those performed by machines and algorithms will increase from 29% to 42%. 62% of organizations data processing, information search and transmission tasks will be performed by machines. All this will create more disagreements, clashes, disputes and litigation. Siphoning off of taxpayers hard earned money by those who get into power and parking them in tax havens, by camouflaging illegalities or bribing persons holding power, is bringing about serious conflict between the governing and the governed.
Rule of law
Though history of mankind is a history of glories of wars, loots, plunder, pillage and rapes, but history has also taught us that nothing has ever been achieved by violence, destruction, demolition and devastation. The rise of rule of law is the rise of the civil society to protect itself from any form of criminality, illegality and exploitation.
These inter and intra conflicts at global, national, state and family level can only be checked and resolved by continuously affirming the rule of law. Rule of law will have to act more firmly as the protector of civil society, then ever. Since the Magna Carta the rule of law has firmly established itself and has continued to deal with all forms of crises as and when they continued to occur in human intercourse in all the nations established by law as contra-distinguished from autocracies and military regimes.
In a world of multi-level governance and global legal pluralism, subjecting political actors to the rule of law represents a particular challenge. The unbundling of authority at different levels of governance and the lack of overreaching framework governing their interactions make the attribution of responsibilities more difficult and governance failures likely. However according to me, these alleged weaknesses of governance beyond the nation stage could turn out to be its greatest strengths. Because the different layers of governance can work out like checks on each other, thereby hedging the exercise of political power and strengthening accountability as well as contributing to the multi-level protection of human rights Rule of law is not static. It will continue to evolve as technology continues to help hasten the rate of evolution further. Global politics will have to rise above dogmas, isms, group thinking, crusader mentality and anti-intellectualism which divides the world into an in-group and out-group, believers and haters, righteous and wrong-tous. Rule of law is the only way of respecting the equal moral worth of all human beings and work to build equality across the world. I sense that some people are rather gloomy about the future of the rule of law. I do not share their pessimism as I am a hard core optimist. Responsible exercise of judicial review is both a precondition and characteristic feature of a society that values the maintenance of rule of law.
Role of Judiciary
Judiciary by its inherent nature assumes jurisdiction to determine all forms of conflicts arising out of abrasions in the society. As the conflicts grow deeper and sharper, which is bound to happen amongst and between all institutions like technologists, entrepreneurs, families, global NGOs and governments.
The process of litigation is creative for the judges and advocates; decisive for the litigant; educative and informative for the people who wish to be aware of various dimensions of inter and intra-human expressions, interactions and relationships, their rights and duties and rights and duties of the institutions; entertaining for the public in general; a source of plugging holes for the legislators and realization of the errors committed by executive, deliberately or un-intentionally. This activity also acts as a process of balancing powers as the real purpose continues to reach justice by the process of dialectics. In the judicial process we see dialectics live, eliminating errors by a process of bar bench legal reasoning, a note slowly rising to crescendo, by looking into the issue in hand, precedents and the direction and constantly applying the principles of rule of law to the new facets as they are evolving with technological changes and bringing about a new socio-economic structure.
Judiciary will have to act at all levels, from local to global, with all the power of wisdom at its command, both as a shield and as a sword. Shield to protect any and every exploitation, sword to punish the exploiter and in the process resolve the conflicts, expound the truth and provide justice for all. With judicial activism protecting human rights, crusader against injustice in all forms, as the watchman of the civil society, judiciary is coming out of the Machiavellian shell of limited power or as Alexander Hamilton said the weakest arm of the Government, without sword or purse, as its assigned role was limited to merely interpreting the laws.
But that is not wholly true. While interpreting the equality clause, one of the profound pillars of rule of law, it has the power to strike down all forms of arbitrary actions, convict the head of the state for corruption, hold as null and void egislation abridging or violating equality. Believe you me friends, this is not some serious inroads into the structure of separation of power; it is the only road to judicious use of power to provide the necessary protective umbrella to a seemingly fractured civil society.
When legislature and executive fail the people, the man in the street rushes to the lawman, who in turn rushes to the court to find protection of judiciary which affirms the rule of law in every case that comes to its fold. With parliamentary democracy under threat and conflicts becoming more sharper, to protect the civil and civilized society, judiciary will have to play a firmer and larger role than it ever did. As a protector of constitutionalism and the rule of law, judiciary is the first and the last line of defense for the civil society and the mankind.