Gandhi Foundation Annual Lecture – 2014 The Rule of Law and Nation Building



by Dr the Honourable Navinchandra Ramgoolam, GCSK, FRCP Prime Minister

Wednesday 01 October 2014
Inner Temple, London

Master Treasurer,
Distinguished Members of the Inner Temple,
Mr Mark Hoda and Distinguished Members of the Gandhi Foundation,
Distinguished Jurists,
Ladies and Gentlemen,

I am profoundly honoured by the invitation of the Gandhi Foundation to give this lecture today on, “The Rule of Law and Nation Building” – and I am especially honoured to do so in the Inn of Court chosen by Mahatma Gandhi himself, in the Hall where Gandhiji himself was called to the Bar in 1891, and before my fellow members and Benchers.

Before I commence, I should like to pay my own tribute to a former President of the Gandhi Foundation – the distinguished film-maker – Lord Richard Attenborough, who died on 24th August this year. Very few people in the modern era have done more to bring Gandhiji’s life and achievements before a mass audience than he – in his Oscar winning film Gandhi.

That film, released in 1982, was the product of a lifetime of study and consultation with those who knew Gandhiji, including Nehru. Its success in capturing something of the moral essence of its subject makes it film-making of a very high order, and it reflected very well not only Gandhiji’s importance, but the rare artistic integrity of its maker. Lord Attenborough will be sorely missed.

My own task today is a daunting one. Those who devised the title of this address, no doubt deliberately, set the bar very high. The contribution of the Rule of Law to the construction of a nation is a mighty subject and I am acutely conscious of my own shortcomings in being qualified to surmount it. I am not at all sure that I am equipped sufficiently, either as a lawyer – or as a nation-builder!

It might be appropriate for me to say a few words about Mauritius.

Mauritius became independent in 1968. We are a small island; approximately one third the size of Wales, 720 sq miles although I am sure you would find the climate more attractive.

Approximately 1.3 million people, reside in this island in the middle of the Indian Ocean.
Our people are made up of many races and creeds, African, Asian and European, but we have evolved, to a remarkable degree a Mauritian way of life.

Indeed a visitor will, on the whole, be struck by the extent to which the various components of our Society, dramatically disparate elsewhere, resemble each other far more in their language – creole, habits and assumptions, which inspire an attachment that endures for life.

By these common impressions the minds of our people, while widely divergent and variegated by religion, culture and race have managed to be united in a common purpose.

We have been helped, of course, by the fact that we are an island. Minds are concentrated on finding ways of living together when there is nowhere to go but the sea – but although we have no natural resources, we have also been generously endowed with these cultural and human resources.

Our people have a reputation for being agile in mind and spirit and for being inventive and imaginative. This is why two noble prize winners in economics, thought this island was doomed to become a basketcase, we have been able to prove them wrong.

Thus over the years, we have been able to change and diversify our economy from sugar production to tourism and textiles, to information technology and financial services.
And more importantly we have chosen the path of democracy with free and fair elections.

Indeed we have had peaceful changes of government through the ballot box. This is the litmus test of a real democracy. I always point out, that since Independence, we have had four Prime Ministers. And all four Prime Ministers, including myself have suffered defeats at the polls.

In 1901, on his way back to India from South Africa, Mahatma Gandhi stopped over in Mauritius. He was there a mere 18 days but it left a lasting impression on him. He saw first hand, the plight of the indentured labourers from India as well as the descendants of the African slaves. He impressed upon them to send their children to school and to be involved in the political process- for he said, it was the only way change could be brought to the status quo and end the injustices they suffer daily.

When Gandhi left Mauritius, he was described by one rich Muslim Merchant, he said and I quote “Gandhi was like a modern day pharaoh who guides his countrymen in the rough sea far away from the rock under the water, and where there may be every chance of being clashed.”

None of this would be possible without the vigorous and lively respect for the rule of law that exists among Mauritians.

What is meant by the “Rule of Law”?

Legal scholars and distinguished judges have debated the meaning of the phrase, the “Rule of Law” with a depth of knowledge and sophisticated understanding far exceeding my own accomplishment in this field.

And yet, so important is it that I am sure each one of us would acknowledge the phrase, and what it stands for, cannot solely be owned by lawyers, just as the “Rule of Law” cannot mean – the rule of lawyers!

For, the words, “the Rule of Law”, possess a human significance – a moral and spiritual potency – that transcends a purely legal analysis.

Surely, some of their power is that they evoke an aspiration, an ideal which is immensely valuable to the ordinary man and woman – something to which, in seeking to live together in societies, often fragmented and divided by culture, religion and race, the heart yearns for – and which is vital to their capacity to live together within a single nation.

The precise import of the phrase will, perhaps, vary according to the context in which it is used. For the late Lord Bingham, in his book entitled “The Rule of Law”, it meant an amalgam of formal and substantive rights that embraced the separation of powers, access to a court and an independent judiciary, the fundamental protections of the European Convention on Human Rights and, as he put it, the “basic entitlements of a human being”.

To this great English judge, it was, indeed, a commodious mansion with many rooms.

Sir John Laws, Treasurer of Inner Temple in 2010, in his three Hamlyn Lectures on the common law constitution, which I was kindly presented with a signed copy of them earlier this year by the Sub Treasurer and I have read them with great interest. The preface is worth restating, “The law is not a science, for its purpose is not to find out natural facts. It is an art as architecture is an art: its function is practical, but it is enhanced by such qualities as elegance, economy and clarity.”

Sir John goes on to say that the law has two practical purposes: Firstly to require, forbid or penalize conduct between citizens, and citizens and the State; and
Secondly to provide formal rules for classes of human activity whose fulfilment would otherwise be confused, uncertain or ineffective. And six years earlier, Sir Francis Jacobs, a former jurist and President of European Law Institute, giving the same three lectures on “the sovereignty of law: the European way” stressed that the rule of law has to embody values which seem to those governed by it, widely accepted as central to their modern, social and political life.

But for a population of indentured Indian labourers and of African ex-slaves, transplanted to the shores of a remote island, six hundred miles off the coast of Madagascar, to work in the sugar cane fields like beasts of burden, it meant the just conceivable possibility of equality, if not socially or economically, then at least in the eyes of the law.

It offered the prospect of impartial justice according to ascertainable, albeit harsh, rules; it meant that they might hope, even sometimes against their masters, to receive an independent and just consideration of their grievances. More often than not, they were disappointed.

There is some excellent research by Dr.Marina Carter into official records and petitions to the “Protector of Immigrants” in Mauritius, from the mid and late 19th Century, in her book, “Lakshmi’s Legacy”.

She shows how, despite great hardship, Indian indentured labourers in the mid 19th Century were sometimes able to seek redress from the courts. Frequently, they met prejudice and corruption and the results were mixed.

Dr. Carter quotes the deposition of Lakshmi, an Indian immigrant, who describes her experience of the Rule of Law in Mauritius in the late 1830s.
“About a year and a half afterwards, my Master struck me without cause and I lodged my complaint against him at the Police Office, where he was fined 40 Rupees – after which I remained in his service for about three months, during which time he sent me once to the Police Office, charging me with neglect of duty for which I was ordered to break stones for 5 days.

Soon after this M. Civet handed me over to M. Lolivet, under whom I served as a labourer for about three years. This gentleman was very kind to me, he is praised by all persons working under him, he never ill-treated me on any account whatever, but his French Head Servant who superintends the Plantation, ill uses the labourers – about a year ago, one day, the said servant found fault with me and struck me on the face with a shoe, I again complained of it at the Police Office, where he was tried and sentenced to be confined for 48 hours – after this, the man was seeking for an opportunity to take me to the Police Office, but he did not succeed until a few days before my departure from that place when he found fault with my work and took me to the tribunal where I was sentenced to be locked up for some days – but before the time expired my master, M. Lolivet got me released.”

What I found both moving and eloquent about Lakshmi’s testimony, is that this powerless indentured Indian immigrant, whose voice arises, with remarkable immediacy from the obscurity of history, clearly believed that she could find a remedy by going to the local police and the court. Here, if nowhere else, she was an equal. On her evidence, her master could be fined for mistreating her and the French Head Servant “confined”.

Indeed, Dr. Carter observes of the Indian workforce of these times in Mauritius that their “litigiousness became proverbial”.

(Some might say that little has changed!)

However, if they were litigious, it was because the legal culture existed in which they could bring their complaints, both civil and criminal, before the authorities. And they were often ably assisted by the attorneys, many of them French or British, who no doubt were pleased to see a new source of income in their offices.

Indeed, it was the petition of 10,000 of these labourers, helped, as was to become so often the pattern later, by benevolent men and women of European extraction, that brought about the advent of the Royal Commission of 1872 into the administration of justice in Mauritius, which led to great improvements.

It may seem surprising that I have spent a little time on this history and have, so far, mentioned only in passing the great man in whose honour this annual lecture is established.

However, there is a discernible connection between Lakshmi’s courageous use of the law in her struggle against her employers in the 1830s, the fight of thousands of indentured labourers in Mauritius for their rights in the 1870s, and Mahatma Gandhi’s battle, first in South Africa from 1893, and then thereafter in India from 1915.

It is noteworthy that Mahatma Gandhi had, literally, to become an outcaste to travel from his family home in Gujarat, to study the law and to train to become a barrister here in this Inn. He was prohibited by his caste council from going but refused to comply – an early example of his defiance of convention. It is said that even some members of his family, including his sister shunned him for doing so.

But he knew, even then, that the study of the law of England offered an escape from the chains that held India back and that held him back. He knew that one of the greatest impediments to his development as a human being, and as he came to realise, to India’s development as a nation too, was the rigid divisions of her society by historic inequalities.

In the solemn principle, declared by Queen Victoria to her Indian subjects after the Great Mutiny in 1858, that “all shall enjoy the equal and impartial protection of the law”, he found a promise that offered the hope of freedom from the cultural integuments of the past, from Blake’s “mind forged manacles”, that would keep India divided.

It was Mahatma Gandhi’s exposure to the law, his education here, in this Inn and the experiences he had here, that I believe ignited the first stage of his awakening to the possibility of a new India and a free nation.

For years afterwards, Mahatma Gandhi believed that the values of impartial and equal justice to which he was introduced here, as expressed in the common law and Constitution of England, offered the best hope for the freedom and dignity of Indians.

His unpublished diary, kept while he was here in London, shows that he was fascinated by how the British Empire had come into being and how its institutions, not least the common law, its courts and the legal profession, seemed to transplant easily to areas of the world so remote in culture, language and religion.

To him, the rule of law enshrined in what he called the “British” constitution contained a moral and spiritual force.

In his autobiography, he wrote, “Hardly ever have I known anyone to cherish such loyalty as I did to the British Constitution”. He described its commitment to impartial and equal justice as the “spiritual foundations” of the Empire and said, “tear away those ideals and you tear away my loyalty to the British Constitution.”

Indeed, it might be said that it was only when he came to believe that the law, by itself, was not enough to achieve the new India that he conceived his doctrine of Satyagraha – of non-violent, moral force. And, of course, he also came to believe that in the British rule of India, those ideals had been torn away – principally as a result of the massacre at Amritsar in 1918 – or, more accurately, by the British response to it, in failing to put its authors on trial.

Even then, one of the aims of Satyagraha was to use the ideals and standards of the constitution he so revered to show up the contradictions and compromises on which the British rule in India sometimes depended.

It was a paradox; carefully chosen law-breaking designed to uphold the rule of law. In 1921, my own father, Sir Seewoosagur Ramgoolam, although he did not study the law but medicine, had beaten the same path as Gandhiji to London where he had become immersed in its political and literary culture while pursuing his medical studies.

He made a particular study of British parliamentary democracy, deriving much from his friendly association with prominent British Labour Party figures such as George Lansbury and Harold Laski. At the same time, he became friends with literary figures such as T.S. Elliot; his library contains a collection of first editions of Elliot’s work, each inscribed “to Ram from Tom”.

My father became deeply imbued with English culture and civilisation. He was influenced by his exposure to British parliamentary democracy and by its new stirrings as the franchise was extended and the British Labour Party began to emerge as a parliamentary force, forming its first minority government in 1924, and engendering the hope of new possibilities of social and economic reform.

But he was also inspired by the gradually gathering momentum for Indian independence – and he was deeply impressed by Gandhiji’s profession of non-violence and his respect for the rule of law.

In 1924, he became President of the London branch of the Indian National Congress. He was an avid reader of Gandhiji’s journal, “Young India” and, in 1931, Gandhiji visited London for the second Round Table Conference on constitutional reform in India where they met several times.

From these experiences, he became convinced that the only path to independence and nationhood for Mauritius was by means of a determination to hold to the values of constitutionalism and the rule of law.

The resolution of the apprehensions and anxieties of the widely different traditions, and cultural and religious communities, which exist in our small country could only be achieved if each was assured that there would be an unshakeable guarantee of an independent judiciary and of equal and enforceable rights. That guarantee is strongly underpinned by the right of appeal to the Judicial Board of the Privy Council.

In addition, the establishment of free universal education and healthcare, of old age pensions and of other welfare provision for our people, which my father also strove to bring about, has installed a stable settlement in which no section of our society is without a stake in its success.

He said: “Today we are a nation, dedicated to the ideals of peace and brotherhood and it will be the constant objective of my Government to ensure that every Mauritian, no matter his creed or class, enjoys alike the privileges accruing to him as a citizen.”

It will be one of the constant challenges for all future governments to ensure that this remains true. However, I believe that the vibrant legal tradition that exists in Mauritius, the fierce protectiveness by our civic institutions of individual rights, and the strongly embedded tradition of faith in legal and constitutional propriety, which is common to all communities and sections of our society, are at the very heart of our national identity.
We have been fortunate. The confluence of the legal traditions of England and of France, the long and determined struggle for equality of the Indian Diaspora, symbolised and influenced by Gandhiji, have all provided the fertile soil in which the Rule of Law could grow strong roots.

It is often, but truly, said that a nation’s greatest resources are its people. In them resides the constructive impulse to create and to forge the common bonds, symbols, and political and other institutions in which, for all our differences, we find a sense of shared community and national identity. As we look at some regions of the world, afflicted by apparently permanent instability or ravaged by war, it is possible to remark that few of the peoples in those regions have experienced for long in their history, if at all, the benefits of the rule of law and of equal, independent and impartial justice.

It may just be that it is not the universal drive or aspiration of all human beings to believe in the possibility of this kind of equal justice or of the rule of law. It may be that amid the atavistic drives of tribalism, of revenge, of superstition, the fragile moral and spiritual ideal – the liberating moral force – that Gandhiji saw within the concept of the rule of law, is easily ignored or else it is trodden down.

But where it has taken root – where it has been allowed time to grow – one can only say that it is not easily stamped out because it responds to one of the deepest wishes of mankind – to be able to live in peace and respect – for each other and “for the basic entitlements of a human being”.

With Gandhi’s memory comes an idea, and it is an idea which encapsulates all that is best in the world’s religious traditions, all that is proper in the rule of law and all that is effective in the true use of language. At its core is the notion that everyone has a right to the fulfilment of his potential and that the essential qualities of a nation are not separate to the essential qualities of each of its citizens.

It is therefore fitting that I bring my remarks to an end with one of Gandhi’s quotations on the law of truth. It certainly applies to barristers but there is a message for all of us in it, I quote: “I had learnt the true practice of law. I had learnt to find out the better side of human nature and to enter men’s hearts. I realised that the true function of a lawyer was to unite parties riven asunder. The lesson was so indelibly burnt into me that a large part of my time, during the twenty years of my practice as a lawyer, was occupied in bringing about private compromises of hundreds of cases. I lost nothing thereby, not even money, certainly not my soul.” Unquote.

No wonder that the other beatitude which Gandhi always held in his heart was, “blessed are the peacemakers” a motto long adopted by the lawyers and which is replicated in one of the stained glass windows of the Temple Church to remind us, as it did Gandhi, that ours is a noble calling.

Ladies and Gentlemen,
I thank you very much for your courtesy and attention.
It has been a pleasure to be with you for this very important event.
****

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