From Times Online
March 3, 2008
The written side of litigation may not be as glamorous but it's where much of the war is fought, says Catherine Newman, QC
Catherine Newman, barrister
Interview by Alex Aldridge
Become a better lawyer: running a case, doing a deal, moving in-house and other tips from the top
Some people love to seem so clever. When I was younger I used to think that I was too stupid to understand those documents where you have to read a paragraph several times in order to understand it. But gradually I realised that the problem was that some people simply have a drafting style that is far too complex. Look at the speeches of the great House of Lords judges of our day: beautifully written but in plain, clear English.
Ambiguity is what gets lawyers into trouble. When writing a formal opinion one is able to think about exactly how to phrase something. But with advice increasingly being given more casually, there’s much greater scope for confusion to creep in. The immediacy of email means there’s an awful temptation to dispense with the polishing stage — and in litigation a little bit of polishing can make a huge difference.
Try not to make your missives too stinging. Many moons ago I was asked to draft an opinion explaining to a country solicitor why a client couldn’t extract money from a company that the court had ordered her to hand over to the other side. Of course, it was glaringly obvious that such a course of action would have been completely improper and likely to result in further litigation. Being very young, I may well have used that term “improper”. I certainly didn’t pull my punches. The response, a copy of which I still have to this day, begins: “I have received a stinging missive from Miss Chariots of Fire, who is fortunate that she does not have to make a living by the exercise of personal charm . . .”
Gradually you learn to code your language in more outwardly acceptable terms. A Chancery favourite is “utterly misconceived.” I use that a lot. Or, “We’re finding it rather difficult to understand the point you’re making.” If you receive that one, you can be sure that the other side thinks you’re talking complete bollocks.
A large part of the war occurs in the correspondence. I give the same level of consideration to drafting letters to the other side as I do to writing formal opinions. “Dear Judge” letters, I call them, because even if they’re written before litigation has commenced, they should always be drafted with the eyes of the judge in mind. They’re your opportunity to show not only that your client has behaved reasonably and sensibly from the beginning, but — and this is crucial for getting your costs if you win — that you’ve grasped the essential legal issues early on and have stuck to them.
Develop a flexible, anonymous style. If people spot your hand in the drafting, they may use it against you. There was an arbitration where we were against a solicitor based in Kazakhstan, who wrote the most mind-bogglingly rude letters — always unwise as judges hate correspondence that unnecessarily raises the temperature. This guy’s downfall was his inability to resist using certain pet phrases over and again. His client would never go to a meeting; he’d go to “a high level meeting with senior personnel” — that sort of stuff. It didn’t take long to spot the documents in which he’d had a hand.
Do your best to assist the court. Sitting part-time as a judge in Guernsey and as a recorder in the Crown Court, I’m well aware that case files often arrive on a judge’s desk at 4.15 in the afternoon on the day before a hearing begins. I always try to provide a thumbnail picture of my client’s arguments early on in my skeleton argument, just in case whoever is trying the case hasn’t managed to plough through everything I’ve written.
Other barristers are rather more cynical. I certainly know of two or three members of the profession who, when they don’t have a strong case, deliberately obfuscate by making their skeletons as long-winded and confusing as possible in the hope that the judge won’t have time to untangle the various arguments.
The written aspect of the job may not be as glamorous as the oral side of things. But it’s something that we commercial barristers take enormous pride in. I remember being asked as a very junior barrister to prepare a note on a particular section of an act of parliament that the court was construing. To my absolute delight, Lord Hoffmann (then a first instance judge), included a very brief acknowledgment of my “helpful” note in his judgment. Now that was real praise.
Catherine Newman, QC, is a barrister at Maitland Chambers
Friday, March 07, 2008
Putting the executive in its place
B.P. Jeevan Reddy
The Hindu , March 6,2008
If the government ignores the will of Parliament and proceeds to finalise the Indo-U.S. nuclear deal, it would mean the executive is asserting its supremacy over Parliament – an unacceptable situation, constitutionally speaking.
A basic premise of the parliamentary system of government is the supremacy of Parliament. The executive — the political executive — is drawn from and is a part of Parliament. It is not independently elected.
While Parliament can override the executive will, the converse is not, and cannot be, true. India has adopted the parliamentary form of government both at the Centre and the States.
The Constitution is not exhaustive of the constitutional system prevailing in our country; conventions are a part of and constitute an essential component of the system. This is a proposition no student of constitutional law would dispute. In many respects, the Constitution is silent and the silences are filled by the conventions. Just as we have borrowed the parliamentary system of government from the United Kingdom, so have we borrowed its conventions too — with appropriate adaptations, of course.
By way of illustration, there is no provision in the Constitution requiring the President to invite the leader of the single largest party in the Lok Sabha to form a government. Article 75(1) merely says: “The Prime Minister shall be appointed by the President and the other Ministers shall be appointed by the President on the advice of the Prime Minister.”
Literally read, the President can as well invite the leader of the second largest party and give him or her sufficient time to cobble up a working majority by one or another means. It is the convention that obligates the President to invite the leader of the single largest party or the single largest pre-election formation to form a government and no President will dare to violate this convention.
Another instance: Prior to amendment of clause (1) of Article 74 by the Constitution (Forty Second) Amendment Act, the Constitution did not say in so many words that the President is bound to act in accordance with the advice tendered to him by the Council of Ministers with the Prime Minister at its head. Literally read, the clause enables the President to ignore such advice and act in his discretion. But soon after the commencement of the Constitution, when a doubt was raised on this point, it was made clear to the President by the highest legal functionary of the state — which he gracefully accepted — that since India has adopted the British parliamentary system and conventions, the President is bound by, and is bound to act in accordance with, such advice. There was never any departure from this convention. Of course, the 42nd Constitutional Amendment Act, 1976 expressly incorporated this convention in the Constitution. Even without this amendment, it is clear, the position would be the same. The decisions of the Supreme Court in 1955 (Ram Jawaya Kapur) and 1974 (Shamsher Singh) make it clear that we have borrowed the British parliamentary system, with all that goes with it.
Negation of concept
On the Indo-U.S. nuclear deal, a substantial majority of Parliament has made its position clear: it is opposed to the deal in the present form, particularly because of the governing provisions of the Hyde Act passed by U.S. Congress. The question is not whether the majority is right — or whether the government is not right. The political executive cannot sit in judgment over the wisdom, or the motives, of the majority in Parliament; it has to abide by it. Otherwise, it would be a clear negation of the very concept of parliamentary form of government.
If the executive (the Government of India) ignores the will of Parliament and proceeds to finalise the deal, it would mean the executive is asserting its supremacy over Parliament — an unacceptable situation, constitutionally speaking. On the other hand, every action of the executive can be reviewed by Parliament; no act of the executive is immune from legislative oversight. To assert the contrary is to undermine the very concept of the accountability of the executive to Parliament [recognised in Article 75(3)] as also the concept of parliamentary supremacy over the executive. A situation should not be allowed to develop where the majority in Parliament is driven to pass a resolution disapproving the nuclear deal, which may compel the government to tender its resignation.
It is true that under our constitutional system — again following British practice — it is for the government of the day to enter into treaties with foreign powers and that there is no provision for approval or ratification of such treaties by Parliament or by either of its Houses. But under our Constitution, it is not an unquestionable right of the executive. It can be controlled and regulated by our Parliament by making a law as contemplated by Entry 14 of the Union List in the Seventh Schedule to the Constitution.
It is true that Parliament has not so far made any law with reference to this Entry laying down the parameters of and/or laying down the manner in which this power has to be exercised. Our Parliament has chosen not to act in the matter despite the experience of the Uruguay Round of GATT Treaties — in particular, the Agreement on TRIPS (Trade-Related Intellectual Property Rights) where the executive signed the agreement containing provisions directly contrary to the recommendations of a parliamentary committee of 40 members drawn from all parties.
But all this does not mean that when a substantial majority in both the Houses expresses itself unambiguously against this particular agreement signed by the government, the latter is entitled to ignore Parliament’s will and go ahead and finalise the deal — as it is made to appear from recent statements emanating from governmental circles. It is not really necessary to go into the question whether the agreement entered into between India and the U.S. on civilian nuclear cooperation amounts to a ‘treaty’ or whether it is a mere ‘agreement.’ Whether it is a treaty or a mere agreement, the action of the government entering into it is not — and cannot be — outside the purview of Parliament. It is also not a question of procedure, namely under which rule of the House Parliament expressed its intention. It is a matter of substance and of democratic ethos and political morality.
Wrong precedent
That Parliament has expressed its will in unambiguous terms is enough. If the Government of India yet proposes to proceed to finalise the 123 agreement, it would be a wrong, and an unhealthy, nay, an undemocratic, step and would amount to laying down a wrong precedent for the future governments to follow. The Preamble to our Constitution speaks of the resolve of the people of India to constitute India into a “Democratic Republic” among other requisites. It is Parliament that represents the will of the people — not the executive, which is only a part of Parliament. It is inconceivable that a part can defy the whole.
A passing thought: if the foreign policy of a country is meant to subserve the interests of that state — and not be an exercise in charity — one finds it amusing to see hordes of incumbent and former officials of the U.S. government descending on India to persuade, cajole, advise, and threaten us into finalising the djavascript:void(0)
Publish Posteal at the earliest.
(Justice B. P. Jeevan Reddy is a former Judge of the Supreme Court of India and a former Chairman of the Law Commission of India.)
The Hindu , March 6,2008
If the government ignores the will of Parliament and proceeds to finalise the Indo-U.S. nuclear deal, it would mean the executive is asserting its supremacy over Parliament – an unacceptable situation, constitutionally speaking.
A basic premise of the parliamentary system of government is the supremacy of Parliament. The executive — the political executive — is drawn from and is a part of Parliament. It is not independently elected.
While Parliament can override the executive will, the converse is not, and cannot be, true. India has adopted the parliamentary form of government both at the Centre and the States.
The Constitution is not exhaustive of the constitutional system prevailing in our country; conventions are a part of and constitute an essential component of the system. This is a proposition no student of constitutional law would dispute. In many respects, the Constitution is silent and the silences are filled by the conventions. Just as we have borrowed the parliamentary system of government from the United Kingdom, so have we borrowed its conventions too — with appropriate adaptations, of course.
By way of illustration, there is no provision in the Constitution requiring the President to invite the leader of the single largest party in the Lok Sabha to form a government. Article 75(1) merely says: “The Prime Minister shall be appointed by the President and the other Ministers shall be appointed by the President on the advice of the Prime Minister.”
Literally read, the President can as well invite the leader of the second largest party and give him or her sufficient time to cobble up a working majority by one or another means. It is the convention that obligates the President to invite the leader of the single largest party or the single largest pre-election formation to form a government and no President will dare to violate this convention.
Another instance: Prior to amendment of clause (1) of Article 74 by the Constitution (Forty Second) Amendment Act, the Constitution did not say in so many words that the President is bound to act in accordance with the advice tendered to him by the Council of Ministers with the Prime Minister at its head. Literally read, the clause enables the President to ignore such advice and act in his discretion. But soon after the commencement of the Constitution, when a doubt was raised on this point, it was made clear to the President by the highest legal functionary of the state — which he gracefully accepted — that since India has adopted the British parliamentary system and conventions, the President is bound by, and is bound to act in accordance with, such advice. There was never any departure from this convention. Of course, the 42nd Constitutional Amendment Act, 1976 expressly incorporated this convention in the Constitution. Even without this amendment, it is clear, the position would be the same. The decisions of the Supreme Court in 1955 (Ram Jawaya Kapur) and 1974 (Shamsher Singh) make it clear that we have borrowed the British parliamentary system, with all that goes with it.
Negation of concept
On the Indo-U.S. nuclear deal, a substantial majority of Parliament has made its position clear: it is opposed to the deal in the present form, particularly because of the governing provisions of the Hyde Act passed by U.S. Congress. The question is not whether the majority is right — or whether the government is not right. The political executive cannot sit in judgment over the wisdom, or the motives, of the majority in Parliament; it has to abide by it. Otherwise, it would be a clear negation of the very concept of parliamentary form of government.
If the executive (the Government of India) ignores the will of Parliament and proceeds to finalise the deal, it would mean the executive is asserting its supremacy over Parliament — an unacceptable situation, constitutionally speaking. On the other hand, every action of the executive can be reviewed by Parliament; no act of the executive is immune from legislative oversight. To assert the contrary is to undermine the very concept of the accountability of the executive to Parliament [recognised in Article 75(3)] as also the concept of parliamentary supremacy over the executive. A situation should not be allowed to develop where the majority in Parliament is driven to pass a resolution disapproving the nuclear deal, which may compel the government to tender its resignation.
It is true that under our constitutional system — again following British practice — it is for the government of the day to enter into treaties with foreign powers and that there is no provision for approval or ratification of such treaties by Parliament or by either of its Houses. But under our Constitution, it is not an unquestionable right of the executive. It can be controlled and regulated by our Parliament by making a law as contemplated by Entry 14 of the Union List in the Seventh Schedule to the Constitution.
It is true that Parliament has not so far made any law with reference to this Entry laying down the parameters of and/or laying down the manner in which this power has to be exercised. Our Parliament has chosen not to act in the matter despite the experience of the Uruguay Round of GATT Treaties — in particular, the Agreement on TRIPS (Trade-Related Intellectual Property Rights) where the executive signed the agreement containing provisions directly contrary to the recommendations of a parliamentary committee of 40 members drawn from all parties.
But all this does not mean that when a substantial majority in both the Houses expresses itself unambiguously against this particular agreement signed by the government, the latter is entitled to ignore Parliament’s will and go ahead and finalise the deal — as it is made to appear from recent statements emanating from governmental circles. It is not really necessary to go into the question whether the agreement entered into between India and the U.S. on civilian nuclear cooperation amounts to a ‘treaty’ or whether it is a mere ‘agreement.’ Whether it is a treaty or a mere agreement, the action of the government entering into it is not — and cannot be — outside the purview of Parliament. It is also not a question of procedure, namely under which rule of the House Parliament expressed its intention. It is a matter of substance and of democratic ethos and political morality.
Wrong precedent
That Parliament has expressed its will in unambiguous terms is enough. If the Government of India yet proposes to proceed to finalise the 123 agreement, it would be a wrong, and an unhealthy, nay, an undemocratic, step and would amount to laying down a wrong precedent for the future governments to follow. The Preamble to our Constitution speaks of the resolve of the people of India to constitute India into a “Democratic Republic” among other requisites. It is Parliament that represents the will of the people — not the executive, which is only a part of Parliament. It is inconceivable that a part can defy the whole.
A passing thought: if the foreign policy of a country is meant to subserve the interests of that state — and not be an exercise in charity — one finds it amusing to see hordes of incumbent and former officials of the U.S. government descending on India to persuade, cajole, advise, and threaten us into finalising the djavascript:void(0)
Publish Posteal at the earliest.
(Justice B. P. Jeevan Reddy is a former Judge of the Supreme Court of India and a former Chairman of the Law Commission of India.)
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