Sunday Times 2
Resolution of disputes: The way forward
View(s):Resolution of disputes is the subject of this article. More specifically, the following observations are to consider Law and Order from the angle of Public Law, their judicial function and the administrative function for resolution of disputes.
A benign easy path for resolution of disputes for law and order is, however, disturbed considerably. To explore these aspects, two documents are referred to. They are the November 16, 2021 report of the Justice Committee (JC) in the United Kingdom and the Report under Public Law Chap 15 under Administrative Justice, Oxford Resource Centre. Page numbers are shown in brackets. The terms used in this article are taken from these two reports.
Resolution of disputes is the central function of the judiciary. This is so asserted in the JC, a plain simple fact which yet needs to be reasserted. Resolution of disputes is also derivatively the critical element in Law and Order too. There is, however, much clatter in issues resonating the discussion. A few concerns only will be taken, in turn, by way of illustration.
Informality and constitutionalism are clashing values (642). Constitutionalism is adherence to the terms of the law. Informality is not defined but is in opposition to the law. Yet informality can equally be to advance the law. In fact, there is much informality that nonetheless runs through the process of the formal law, e.g. conciliation within adjudication. In fact, the purpose of informality is to alleviate the rigueur of the letter of constitutional law; one is not possible without the other. Yet these two are placed in opposition in legal writings.
Rule of Law and Administrative Tribunals are likewise seen as in conflict with each other. “Tribunals were a necessary evil and… a subversion of the rule of law… that they undermined the rule of law” — per CJ Lord Hewart (650). The resistance of one to the other is plain. Prof Jensen of the Stanford University in a Memorial Oration says Rule of law has for long been considered only in a legalistic sense, devoid of other considerations from political, social and economic circumstances. Legal pluralism and local knowledge, Jensen says, adds to the mix under rule of law, a citizen rule of law, distinct from constitutional rule of law concerned with the distribution of power, its effectiveness, and equal application in the conventional rule of law.
The issues of the judicial function and the administrative function through Tribunals are likewise seen in that same strain. Quality of Justice is associated with the former, less with the latter administrative Tribunals. Quality of Justice, however, does not stand by itself, its worth and value is only as it delivers to the people for resolution of disputes.
‘Family cases’ is also of serious concern of the UK Chief Justice Lord Burnett (LCJB). Much time of court is taken up by these cases. The issue, in fact, though so stated, is that family cases take up time since the resolution of these disputes engage a process different to adjudication of other crime cases. Within the prism view of the judicial function then protracted resolution is at a disadvantage whereas with administrative function, stretched out process is inevitable.
These differences are thereby plain to the eye. They spring through the idea of separation of powers, their undertones, keeps their exercise apart. The disparate tenor that yet rings through the documents listed above is thus felt keenly. There is little of a common objective that brings together the judicial function and administrative function in the resolution of disputes.
Posed in that manner, all the issues discussed above do not offer an easy path or a benign tone for dispute resolution. Many of the terms used are disputable and so do not help reconciliation or resolution. A question arises why this should be so.
An answer to the problem, so stated and the difficulty which thus arises is, in the realm of power. The manner of exchange between the judicial function and the administrative function is kept apart from power considerations than brought together in a common endeavour. The thrust of the conversation which thus reeks through the documents listed above is in a unilateral idea of power, not in the nature of a relational power as identified by Jorg Habermas of old.
Therefore, the preoccupation of the discussion is with contentions, differences and tension running through their course. Specifically, can it not be asked whether resolution of the parties in dispute be brought before courts or tribunals by either or by both will exercise a relational power than one unilateral? All the other virtues of quality of justice would then accrue without a hitch. This observation is all the more pertinent in the area of Law and Order.
The approach then is important to the task of resolution of disputes as the avowed objective of judicial function and as it may be permitted in the area of administrative justice. The move toward resolution of disputes would then be seeking the ‘best way possible’, p 653, rather than in the manner of discourse engaged in thus far.
Much has been written about resolution of disputes, books and books, disputing each other as shown above, so much so that, taken together, they confuse the issues rather than resolve them.
To promote resolution of disputes, the simple answer appears to be coordination of powers rather than their separation.
(The writer is a Retired Senior
Superintendent of Police. He can be contacted at >seneviratnetz@gmail.com<