Lawyer - THE HELPER in CASE LAW MAKING (!)

TG
Ombudsman for Legal Sector

Posted: 09 Aug 2011 06:32 AM PDT

Comment :

August 11, 2011 At 8:07 Am

The following words, rich in soulful wisdom, of late N A Palkhivala, an eminent legal luminary of our times, may be worth recalling:

“In a vast democracy like India, many citizens are bound to be un-dimensional. But no Lawyer has any excuse for being un-dimensional. By his training and equipment and by his professional competence he is better qualified than the rest of the citizenry to take an active part in the making of laws and the formulation of public policies. He would be failing his country if he did not do this duty.
The lawyer has to act as a catalyst. The responsibilities, which today, lie on the shoulders of the lawyers, are far greater than at any earlier time in world history.”


The above quote from a published speech on the topic – ‘Sentinel of democracy’, delivered nearly four decades ago, is indisputably of greater relevance today than ever before; essentially so, regarding the importantly increasing role lawyers have to play in the making of case law by courts.

The same wishful thinking came to be aired by no less a person than a Finance Minister(if one remembers right, it was the former one), not long ago. As per a personal noting, the information gathered from a Press Report was that, in his address at the Silver Jubilee function of the Customs, Excise and Service Tax Tribunal, the FM said:
“We are concerned about the quality of government representation and looking into it. With globalisation, complexities of transaction will increase and it is important to have good quality government representation. Many judges have told me that the quality of their judgments was as good as the lawyers appearing before them,”

The reported proposal to appoint an ombudsman mooted by the men presently in governance may be, in a manner of speaking, considered as a right action aimed to ‘kick the ball’ that had been in the Government’s court.

Recent literature on an equally recent concept of wide concern- 'corporate governance'

icl Tuesday, August 9, 2011

Recent Literature on Corporate Governance

The literature is, going by one's understanding, centrally, albeit not explicitly, focused on, - the most crucial aspect namely, the role of  'human element'- its basically inherent  characteristics - strengths and weaknesses. Also on -  why, having regard to its overriding role in 'governance' , it is the most important of all to be borne in mind -suggesting, perhaps, that in the matter of framing policies, conceiving of , and to the end of bringing about, any legislation.

If such understanding is any where close to/fairly reflects the 'burden of the literature'- then the litetrature deserves to be commended as a 'holistic', may be the only possible, practical approach! -Subject, of course, to what view those 'experts' -particularly, the ones who happen to be on the same wave length- have to offer, to the discerning readers at large!


Related:
BL 10th - BSR
August 10, 2011

Pulling companies out of the rut

Two write-ups recently came to my notice, purporting to set out new, and even game-changing, approaches to management of organisations, with the aim of pulling them out of the ruts into which they...

 http://www.sc.com.my/main.asp?pageid=1087&menuid=&newsid=&linkid=&type=

Extract:

6.1   OVERVIEW

Good corporate governance is shaped by the complementary and interdependent efforts of all

stakeholders. The efforts of regulators in strengthening the legal and regulatory framework and

ensuring effective supervision and enforcement are just one part of the overall measures required to

strengthen corporate governance. Companies, shareholders and reputational intermediaries need

to step up their efforts in exercising their respective responsibilities for ensuring good governance.

In this context, self and market discipline must complement regulatory discipline to ensure integrity,

confidence and fairness in the markets.

Regulatory discipline is no substitute for the need for capital market participants to govern

themselves responsibly. The cost to the market of over-dependence on regulatory discipline can be

disproportionate to the benefits. It can result in regulations being overly prescriptive, additional costs to the market and may fester a box-ticking culture. For this reason the SC is always guided by

the principle that there should be no more regulation than necessary. This means however that

all stakeholders must make determined efforts to act responsibly and to pre-empt and mitigate

failures.

Market discipline must disincentivise poor corporate conduct through its assessment of corporate

performance as reflected in stock prices, bond spreads and credit ratings. Companies must embrace

the need for ethical practices, and directors must discharge their fiduciary duties by ensuring integrity,

transparency and accountability. Above all, shareholders must empower themselves to be more

assertive in demanding corporate accountability. Where there is failure in such obligation, action

must be taken.

Effective public and private enforcement reinforces self discipline as the real threat of legal action

compels companies to tighten their governance processes to ensure conduct consistent with the

law.