Tuesday, 4 September 2012

Have independent mediation service

Brave New World (The Star)
5 September 2012

This should be considered as going to court is a costly and unpleasant business for most people and really should be avoided.


KARL Llewellyn (pronounced “loo-well-lynn”, I think) was an American jurist with a Welsh name.

He came up with his Law Jobs theory which I vaguely remember from my first year in law school.

According to him, law has to fulfil five “jobs” and they are:

> To avoid conflict;

> Settle disputes;

> Accommodate changes in society;

> Establish a structure for authority; and

> Establish procedural rules to accomplish these tasks.

It is interesting to note that the first “job” of law is to avoid conflict.

Although I am uncertain if Llewellyn (actually, I once heard that the proper Welsh pronunciation is “cluergh-well-learn”, but I could be wrong) had intended for there to be a hierarchy in his law jobs, I would posit that if such a hierarchy did exist, then conflict avoidance should be at the top.

After all, wouldn’t it better if we didn’t get into fights in the first place?

Two examples come to mind and both are about residents in disparate parts of the country worried about nearby developments.

The residents of Bukit Koman in Raub have been fighting for years against a gold mining facility in their area because they claim that the use of cyanide in the operations has created health problems for them.

Over in Kuala Lumpur, some residents in Taman Tun Dr Ismail have been up in arms against the Mass Rapid Transit Corporation (MRT), whose proposed train tracks just metres from their homes are causing worries both in terms of their well-being and the worth of their homes.

In both cases, could these conflicts have been avoided in the first place?

There already exist certain laws which should pre-empt problems such as these.

The Town and Country Planning Act (TCPA) and the Environmental Quality Act’s Environmental Impact Assessment (EIA) requirements are two that come readily to mind.

But both these laws, although well-intentioned, do have shortcomings.

Primary amongst them is just how far public opinion is taken into consideration in the final decision making.

It has to be clearer how public feedback is taken and also, there has to be transparency in the final decision making to ensure that said feedback was properly considered.

Added to this, some sort of independent mechanism for mediation (something which currently does not exist) should also be considered as going to court is a costly and unpleasant business for most people and really should be avoided.

It is far too easy to label opposition to factories, new roads, rail tracks, mining operations and what have you as political issues.

Surely, people don’t get agitated unless they are rightfully worried.

Of course any issue can be turned political especially since final decisions on such matters lie in the hands of the government of the day, but one has to be non-partisan and look beyond that.

In any society, there will almost inevitably be conflicts of interest.

This is even truer when the society is as large, modern and complex as ours.

What has to be done, regardless of whom are the law makers, is to ensure that such conflicts are minimised.

And when it comes to the well-being of the people of a country, this should be even more evident.

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