Centre For Post Graduate Legal Studies

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Michael Davis is a professor at the Faculty of Law, Hong Kong University, teaching courses on international human rights, comparative constitutional law and public international law. In this interview with Bar & Bench, Professor Davis talks about India’s policy towards Tibet, the “countermajoritarian difficulty”, the dangers of an activist court,  and what he thinks of the state of Indian legal education.

Bar & Bench:  Thank you for speaking to Bar & Bench Prof. Davis. What do you teach at the University of Hong Kong?

Prof. Michael Davis: I teach courses on international human rights, constitutionalism and development and things like that.

B&B: What brings you to Jindal Global Law School?

MD: Well, one of the things I do frequently in India is deal with the issue of Tibet. I have been invited to speak on the global aspects of the Tibet problem; looking at it through a kind of global perspective. I have been asked to speak on Tibet in conferences organized at Dharamshala, Delhi and around the world. A lot of my focus is on autonomy so I have often been asked to speak on that issue.

B&B: Could we go back a bit. How did you end up teaching?

MD: I am from Hawaii, where I was a lawyer. I worked for native Hawaiians so I was kind of an “indigenous peoples” lawyer. I was fighting for the indigenous rights for native people working for something called the Native Hawaiian Legal Corporation and we took cases to try and protect environment in native Hawaiian areas. This would include everything from coral reefs to the trees and the mountains. We also took cases to protect native Hawaiian properties that were taken from them over a century ago. We had to develop legal arguments so that we could get some [of the land] back. So we got a lot of land back for the native Hawaiian families. In general, whatever you can imagine are indigenous peoples rights, we would mount cases for that. Anyway I was teaching part time at the University of Hawaii and when I decided that I wanted to be an academic, I came to Hong Kong and I have been there ever since. That is over two decades and I work across Asia, all the way from India to China to South East Asia, on human rights issues. Some areas I focus more on than others; I focus on problems of indigenous population because of my earlier work in that area-

B&B: India must be quite an interesting country for you?

MD: Well, [with respect to] India, I have barely scratched the surface given how far it is from Hong Kong. My expertise tends to be mostly [connected to] areas surrounding China and East Asia. So my initial involvement with India was a conference I organized years ago at the IIC on human rights and globalization. So I organized some activities here. I was also a participant in a conference organized by the precursor of this University on access to justice in South East Asia etc. I come to India frequently because of the Tibet issue, which is again part of China’s periphery and so that is something, which interests me.

B&B: What is your impression of the Chinese policy towards Tibet?

MD: Well I think the [Chinese policy] is poorly conceived. There really is no autonomy for Tibetans and China is essentially viewed by many Tibetans, as an occupying power. And this very much engages India because India’s relation with China is affected by its hosting of the Dalai Lama and by its hosting of Tibetans.

I have been asked to speak on that issue in India but I generally think that India’s care and involvement with Tibet is something, which is, I think, deeply seated in India. And so, in my view, it would offend India’s basic commitments to human rights and justice to simply cave in to China and in effect, bargain away Tibetan’s interests just to improve relations with China. And I think such policy would fail in any event because I think the Chinese government has a very realpolitik approach to international relations and this is very deeply seated in China. My impression, after more than two decades of watching Chinese policy, is that countries that simply give in to Chinese pressures usually get trampled upon. I had a chance to speak in the Foreign Correspondents Club in Central Delhi on this issue and I just think that India should try to have good relation with China but I don’t think it [will] get there by surrendering its commitments to Tibetans.

B&B: Do you think the subject of human rights is given enough importance in say, a law school curriculum?

MD: Well I am not as familiar as you are with law schools here [in India] so I don’t know how robust the human rights curriculum are in Indian law schools. But I think it would be a good investment in India to build up human rights programs.

I think what could distinguish India in the study of human rights, and really add value, would be that a lot of human rights programs in the West focus more on criminal justice, transitional justice etc. Essentially, very lawyerly and legalistic types of things you know. While I think in India, human rights should focus on development issues, on social and economic rights, on ethnic problems, ethnic identity and so on.

So I think there is room in India for a much richer kind of human rights curriculum and I think it is something which can be done in collaboration with universities around the world. So it could have both, a benefit to the community at large and also be a base of expertise where India can do better than many other places.

B&B: How would you start building a human rights curriculum?

MD: Well I think something like what you see here (at JGLS). Of course the name of the University reeks of this commitment to global exchange and so on. And I think that’s the way you do it, if you can build up interactive programs and get students coming. I teach a human rights program at the University of Hong Kong and we have students from India, we have students from Nepal, we have students from across all of Asia really, and some from Europe as well.

When I teach these classes, I have 25–30 students in a class and it is significant that students come from different places. When you are studying an issue like human rights, you want some diversity; you don’t want to be so insular, isolated because human rights is a major challenge around the world  and it competes and supports development in many ways. There is a lot to be learnt from each other.

I think the symbolism that Gandhi initiated in India as [India being a] caring place that cares for ordinary people may not always be achieved in practice. But I think it is a powerful symbolism in India and so India’s engagement on issues such as Tibet, in my view, pays dividends and it helps the country.

The symbolism and the way the country is promoted through its commitments and this is why surrendering Tibetans or anyone else, to me, is so fundamentally at odds with the basic identity of the Indian country. I know it comes up in debates sometimes- “Well our relations with China suffer all these problems because we harbor Tibetans” – but I just think it is a nonsensical argument. I don’t think even China is served by this argument.

At the end of the day China is going to have to deal with its Tibet policies on its own. It is not always going to be able to blame its problems on outside interference. It will have to recognize that there are real problems which need to be addressed. I spend a lot of time writing about this and I go to China and I speak about it and I am not a China-basher. I just think that if I was an advisor to the Communist Party, I would even suggest improvements in their policies in this regard.

B&B: What about China’s argument of progress in the way they have built up their infrastructure? Do you think the human rights discourse comes in the way of such development?

MD: What I think is this: the East Asian case is kind of a special case because of the rapid development, the so called East Asian “economic miracle” of which China is only the latest representative. One of the things you see when you look at all the other Asian newly industrialized economies  was that almost all of them moved towards democratic reform and  political reform at certain stages in the development process. And I don’t think this was an accident. Early stage authoritarian development worked because you know it is almost like a stationary bandit is better than roving bandits. Having somebody control and maintain the country creates an environment where economic activity can occur.

But the problem is that once economic success occurs this kind of developmental model, I believe, becomes its own grave digger. The success creates a complex society: an emerging middle class, the rights of workers, of farmers, of dishwashers and rickshaw drivers all become much more complicated and everyone has higher expectations. And I don’t think the authoritarian model works that well on the high end. So there are lot of questions today – Will China defy gravity? Will it, somehow, be the only country that manages to keep the authoritarian model even after its development success? And I am skeptical of that.

B&B: You mentioned that growing disparity might pose a serious problem in China. What do you think of the kind of disparity that exists in India? How do you explain the fact that it still works?

MD: Well, in some sense it works because India is a democracy. As flawed a democracy as it may be and every democracy is flawed. I come from a flawed democracy; it is called the United States (grins). We can always see the flaws and I think one of the beauties of democracy, if there are fundamental commitments to free speech and so on, then people are only too happy to point out the flaws as often as they can. And so I think that mediates crisis in a society.  It tends to draw our attention to problems earlier rather than later. You know in China what they do is they repress problems and they don’t let anyone report on it and then, only when people elevate the noise sufficiently, then it attracts global attention.

This then becomes a way, by getting international support, to name and shame China into trying to change the policy. This of course goes on and on and sometimes gets somewhere and sometimes doesn’t. The result has been that, just in the past year, there have been 180,000 demonstrations in China; mass actions because of farmers or workers having taken their property from them, being mistreated in employment and so on.

I remember the first time I came to India, I always thought that “My god, this society looks like it is about to collapse.” You know if you watch India on CNN it looks like something is wrong. But when you come here and you start watching and talking to people you realize that, for all its flaws, Indian democracy is the great mediator. Instead of this society breaking into more and more pieces, democracy, somehow, gives Indians hope. And then the task becomes to somehow perfect the Indian governance to better address the problems. It is never going to be perfect and poverty always compounds the problem: when you are rich you can do a lot more than when you are poor. And people often fail to appreciate [this].

I mean we sit in Mumbai and compare ourselves with Shanghai and think “Oh my god, look at this shiny city over there and look at our crappy city.” And I think Indians tend to look at China and almost idealize it but you know Shanghai is not all of China.

I travel a lot in China and there is rural poverty everywhere. I don’t think it’s a horrible case. I see energy, local enterprise, and all kinds of things going on there. At the same time, there is a floating population of about a 180 million people. People who travel away from rural areas and live in cities under a legal system that says they have no legal status. So Chinese become, in effect, illegal immigrants in their own country. So China is not without [its own] problems.

B&B: Just moving away from China for a minute and towards Constitutional studies. One of the arguments we used to have in law school is that the Constitution does not represent the real will of the people, and that it was drafted by people who represented perhaps 10% of the general population. Do you think that is a valid argument?

MD: Well I don’t think so and I will tell you why. In America we can make the same argument; the Constitution wasn’t even drafted by [representatives of] 10% of the population.  It was drafted by a bunch of dead, white men buried in Boston or in Philadelphia. They are dead!

My response to that is what I call, a “living constitution”. The use of constitutional review, for instance, originated in the US, through the Marbury v Madison case. And it took two hundred years to become the lively institution that it later became. There were no free speech cases for example till 1925. So yeah it took a while to develop and maybe because others have experienced, you develop these institutions more quickly. So constitutional review is much more robust in India today, some would fear too robust, and it didn’t have to wait a 150 years to get going. And that’s true when you are not the first guy. America was the first one to develop a written constitutional system.

But what happens, I believe, and this is a debate within the judiciary in many countries including this one, is “What is the role of judges?” Should they actively try to interpret the constitution in light of current conditions or, as some conservative justices in America argue, just look to the original intent? And then if you just look to the original intent they are trying to respond to the point you are raising. You are raising something we call the “counter majoritarian difficulty”

This is a term which implies that [a judicial decision] is against the majority because judges were not elected. So the conservative way of responding to that is to confine the role of judges, but a more liberal way of responding to it is to appreciate that constitutional review by the judiciary is like an engine driving a constitutional system.

 So say, we pass a law on abortion or death penalty or whatever, someone is on death row and they go to court and complain that this is cruel and unusual punishment. The court makes a decision or it could dodge the issue or it can engage it and make a decision. But typically they will define when it is a “cruel and unusual” punishment. And maybe some people in Texas want a death penalty law so they pass a new one. And so that comes back to the court, back and forth, and this is what we mean by a living constitution; a constant constitutional dialogue between the people and these principles that were originally articulated in the Constitution constantly giving a new meaning to them.

So there are two senses that we can say that this institution is democratic: one is that it engenders this dialogue, this conversation. And it is very important in many developing countries to have stable venue for political debate; a place to help us with our tasks. And then the second way that we can say that this constitutionalism is pro-democracy is [the fact that] that modern democracies really cannot survive without some kind of institution like that.

One Latin American scholar described elected officials without a constitutionalism as a “Ceaseristic, plebiscitarian democracy”. “Ceaseristic” – you are electing a dictator; plebisciterain – everyone has a vote.

And we know that fails; that this runs off the track. One person gets one vote one time typically. So constitutionalism should not be underestimated as a service to democracy and at the same time it should be understood and studied so that we know how to empower people. So, yesterday [at my lecture] there was a question relating to scheduled castes. And the student wondered that if we want to measure constitutional review not just as a constraint but as an empowering vehicle, then what about these people? Are they empowered?

Does our Indian constitution empower them? And I think of course, this is exactly the question we want to ask: Is there something about India which would justify, what is called a epistolary jurisdiction where an ordinary person or even you can apply in the court.

B&B: So what do you think about Public Interest Litigation? It a good thing?

MD: I think the kind of shared view that emerged from a very vigorous and lively debate with students [at JGLS] was that a somewhat activist court in guarding institutions, in guarding public empowerment is good.

An activist court in displacing government accountability and responsibility is not. And so the Justices, in their wisdom, have to find a way to assess when their intervention is in service of the constitutional system and in support of it and not simply jump on their white horse every time they see something they don’t like. Because the danger is that they will degrade the other institutions in the performance of their duties and there will be no accountability.

I think the biggest challenge for India (and Prof. Raj Kumar has just written a book on corruption) is to improve the accountability of the government and the accountability of officials. So we would like to see the courts energy in this regard and we don’t want just the courts [to fight corruption]. I mean we can talk about creating corruption fighting institutions. I think the one [Prof. Raj Kumar] recommends in his book is called the Independent Commission against Corruption.

It is like an investigative body that has the power of prosecution, unlike say the human rights commission. This body can prosecute corrupt individuals although you could have some role for the attorney general or something for deciding whether to prosecute or not.

This is just an example. Now would the judiciary have a role in that? Maybe. The corruption cases might come before the judiciary, there could be prosecutions, there could be challenges to the commission. You know this is sort of what Anna Hazare is advocating but trying to find a way to put it into action. So what is the role of judiciary in improving accountability and not displacing government? This is a challenge. Constitutionalism is always an ongoing project, it is never finished.

B&B: Completely moving away from this topic for a while, what do you think about legal education? What, in your opinion, should someone expect from a legal education?

MD: My personal view is that if it is an under graduate legal education, that is significant because, I think they should expect good [foundation] first you know. It should be multi-disciplinary [and] they should not just be studying law classes but other classes. I think the country needs thinking lawyers.

I personally think that lawyers ought to have a very solid foundation and I don’t know all law schools in India are achieving that; some of the best ones are. [A] foundation in jurisprudence, in understanding the Indian constitution and its commitments and so on [is important] because their clients someday will need a lawyer who knows what he is talking about.

And beyond that I think they come to appreciate who are the constituents of law in India; not just a few rich guys. I mean that’s fine, corporations need lawyers too and that’s what makes the economy work. But I think while in law school there is a case to be made that they be exposed to the broader issues in the society.

B&B: Your thoughts on clinical education?

MD: Well I am in favor of it but not in favor of making everything clinical education. A lot of people have promoted it in the recent years as a way to produce young law graduates who are already competent to practice. And that’s an honorable thing and I am not completely against it but I think if it displaces foundation education then I am a little concerned.

And I have that concern even more when it is undergraduate education because the need for the foundation may be more acute when they have education at all. So we don’t want low grade or “debasing” of the Bar, we want to produce top quality lawyers. So yes to clinical education per se but it needs to be targeted in some areas so they can learn some basics. And maybe more on the poverty side because if you are going to go into commercial law you don’t really need clinical education, your law firm can afford to train you. But if you are going to leave law school and work in poverty law then maybe there are lesser resources just to train you. So then having some experience so you can hit the ground running might be good.

B&B: What is your opinion on moots court competition?

MD: Well again I think moots are fine and law schools around the world have them. I have done some that were really interesting. I was a week-long judge in this humanitarian law competition which had teams from all over the world. And I spent a whole week role playing, not just arguing an appeal, but a whole week just role playing humanitarian law. I remember the year that I was judging it, the team from Pakistan won and I was quite proud of them. So I was very impressed with that and some of that is very good.

What I don’t want is just mooting for moot sake. I don’t want the law school to only be measured by whether it produces a moot team or whether the moot team wins. But I think there should be student law journals, student publications and have an opportunity to work on the intellectual side of law and let students have some choice where they want to focus their energies. We don’t want the law school to be a moot training program.

B&B: In your mind, how would you rate a law school? What are, say the five most important factors in your mind?

MD: Well I am not sure if I have ever thought of five, I never had a checklist. Let me see if I can come up with some (grins). Well I think foundations, across disciplines are important.

I would like to see law schools that are less legal formalistic, that understand the law in its social context. And it is not just a matter of doing a clinical in slums but its understanding and [having] post disciplinary studies.

I had a privilege of going to what was ranked as the best law school in the world (Yale Law School) and we used to joke that we weren’t sure whether we learnt law at all there. Everything was interdisciplinary…

B&B: What was Yale like?

MD: [We were] always debating issues, broad issues from whether animals should have rights equal to humans, justice for whom etc and it would depend on which courses you were taking and I thought that these “first order” questions were really great for training students.

B&B: And what did you think about the small class size?

MD: Oh yeah it was very small. So this could be the second measure you have of a law school: whether the size permits access to the faculty. I would like to see a ratio of students and teachers that would allow that.

One of things that we always used to say, in the egoistical world of Harvard versus Yale, is that at Yale we could always talk to our professors while at Harvard we were not too sure about that. I spent a year as a Fellow at Harvard so I have been to both but [Harvard] is much bigger than Yale Law School. So I think some kind of access would be another quality for measuring a law school.

B&B: So why did you think that that Yale was better?

MD: I am an egghead, I particularly enjoy the philosophical side of the Yale Law School and Harvard is rich in that too. There are some debates about critical legal studies and all that stuff going on in Harvard. But I just enjoyed the philosophical richness of my classes at Yale and the fact that the professors there were some of the leading thinkers in the field.

So that is another quality that I would look for. I would want my professors in a law school to be publishing and engaging in global debate and creating knowledge. So if I was offered a third “measure” it would be a faculty that is rich and diverse. And I think to accomplish that you have to work on salaries and that means you have to look at the resources available. Better to have one good law school than three crappy ones in a sense.

Of course we cannot be without law schools and we need to train lawyers. But sometimes there can be a proliferation of law schools that aren’t really carrying their weight. This is the impression that I get. I have been told that there are tons of law schools in India and only a fraction of them are producing good quality lawyers. I don’t want the Bar to be too above everybody and I would like to see engaged lawyers

But you know, in my view people with problems of poverty deserve just as good a lawyer as Bill Gates. They don’t need crappy lawyers so all the good lawyers work for rich clients and lawyers with less competence work for poor.

B&B: But that comes down to money again right?

MD: Yes, it comes down to money. This goes beyond the law school, the availability of legal aid and things of this nature. To create a fair society, to me, is fundamental to the very nature of India, and its tradition and to its founding going all the way to national congress in the 1920s.
This was a very important part of the identity of the country and so that kind of social justice and legal justice is something that demands attention and I think that would be another quality, which I would look for in the law school. Because in India, given the economic statistics that we have, we particularly want lawyers to come out with a strong grounding in issues of social justice.

B&B: Last question. Why should I study law?

MD: Well just for what we said. If you have a commitment to serve the community, it’s a good profession to be in. Look at the presence of lawyers in Indian politics, something my country shares with India, and the role lawyers can play in society. I think as a young person going forward, you are looking for avenues to empowerment so that you will have a voice, a spot at the table. I think young people in general strive for that. I mean if you are in poverty and your education levels are low, your ambitions are to survive.

But if you are a young person for whom law study is an option then I think the idea of service to the community should be a guiding principle. Young people also want to make money and they see lawyers with money and these things compete. But I don’t see them as mutually exclusive. A very good lawyer who makes a lot of money may havemore time. Even if your expectations in life, about the quality of your life or the way you want to live your life requires you to turn more towards a kind of practice that is oriented towards making more money, I don’t think that should require you to abandon the community at large. I think there should be room for both.

B&B: Any last words of advice?

MD: No, no. I can’t give too much advice. I am still trying to figure things out myself.