" Expand our foreign service, and develop the capacity of our civilian aid workers to work alongside the military. Thwarting terrorist networks requires international partnerships in military, intelligence, law enforcement, financial transactions, border controls, and transportation security." (The President's Agenda) " The vibrancy of our Democracy depends upon our willingness to ensure that the fullest range of voices and interests is represented and heard. This is what the fight for equal justice is all about." (Hon. Robert F. Utter, Retired Justice, Washington State Supreme Court)
PROBLEMS AND CHALLENGES
In addition to jurisdictionnal issues, to the world trade court, private international law, to the international criminal jurisdiction, to international travel, interpol and security issues, enforcement of treaties (children kidnapping, hard drugs, money laundering etc), there is also the question of the way each People is treated. Although it has been a constant principle among sovereign States not to criticize the way they handle their domestic affairs, when there are violations of fundamental human rights, other Nations, in particular close Nations and their ambassadors may have the duty to at least voice concerns over the way their hosts treats their own People. In this realm, France in the U.S. had been a foreign policy question when torture was practiced during the Algerian war, inter alia. In the same way, when the U.S disrespected international norms, France has also criticized the United States' government. By triggering such debates in France, the French would feel more understood and more pro-American. As there are different human rights and duties problems in France that are governed by public international law and many of which violate that law, from the country's discriminatory treatment of certain minorities to excessively long preventive incarceration and other issues.
On the other hand, there is a human rights and duty legal issue where France fares rather well while the U.S. does not. An issue which remains at the heart of Democracy, at the core of American revival, and that is the fact that most Americans do not benefit from their constitutional right to enjoy equal and meaningful access to civil justice. As stated the Washington State Bar Association (WSBA) President Stanley A. Bastian regarding this issue (and this assessment also applies for the entire Nation) :
"This case highlights the need to greatly expand access to civil legal services in Washington, particularly when basic human needs are at stake such as in child custody disputes. Every day, people around the state appear in court without legal representation. And they often do so by necessity, rather than choice. Those individuals are also often unable to effectively present their cases in a court. Access to the justice system is a fundamental right, and no person should be denied access simply because they are poor. The WSBA will continue to work with the Legislature to expand access to our court system in Washington."
PROPOSED ACTION PLAN AND REASONS THERETO
To this end, can a U.S ambassador to France contribute and if yes, how ? Answer: by respectfully requesting or proposing what President Sarkozy asked for from American public officials. "Debates" and "farsightedness". Would American interests be served ? Via ricochet. By organizing debates on French and American human rights and law enforcement issues in Paris, the U.S. population may get more educated via media coverage on the fact that one of their fundamental rights, one of the most important ones, is not well respected. This issue is that over 90 percent of Americans have no meaningful access to civil justice in general and tort justice in particular.
In most of Europe and in France, by law, all have equal and meaningful access to the Courts. This constitutional right is central to any Democratic restoration. The present interpretation of our Constitutions in this matter is self-serving to special interests whose powerholders have no class interests in enboldening and strengthening the working class, the modest masses who can't even pay their medical bills, let alone their legal ones. Even the more enlightened members of the US Supreme Court confirmed what our "equal protection of the laws" norm implies:
“…We have recognized that the promise of equal justice for all would be an empty phrase for the poor, if the ability to obtain judicial relief were made to turn on the length of a person's purse. It is true that these cases have dealt with criminal proceedings. But the Equal Protection Clause of the Fourteenth Amendment is not limited to criminal prosecutions. Its protections extend as well to civil matters". 351 US 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956). (Opinion written by Supreme Court Justices Black and Renquist).
Moreover, the Preamble of the Federal Constitution inserts the obligation "establish Justice" before any other priority and the framers did not intend that Justice was reserved to only those who could pay 200 to 300 dollars an hour of attorney fees in complex tort or other civil law actions which can take multiple hundreds of hours before final determination is rendred.
In many other advanced democracies, and in particular in France, this civil versus criminal legal aid discrimination is not accepted. The European Human rights Court has consecrated this fundamental right enshrined in Europe’s Constitutional bedrock erga omnes (for all). Incorporated within the fundamental rights Charter of the European Union, article 47 provides in pertinent part:
«Legal aid is accorded to all who do not dispose of sufficient resources, if this aid is necessary to guarantee an effective access to justice».
Almost all of the International Community's other advanced Democracies have upheld the "equal access to the civil courts" freedom, based on the fundamental principle of "equality of arms" and have thus provided public expense to all who could not afford an attorney, including all non frivolous civil cases (Click here to see the comparative "access to civil justice" results in different countries).
“One of the basic tenets of municipal and international justice is the concept of equality of arms, defined by the European Court of Human Rights as ‘a reasonable opportunity of presenting the case to the court under conditions which do not place him in substantial disadvantages vis-à-vis his opponent” (European Court of Human rights: Kaufman v. Belgium, 1986).
If the rule is equal access to the pursuit of happiness and to Justice, then in the arena of freedom and dignity, the sardine and the shark can not be treated in the same manner
"Majestic is the equality principle of the law where it incriminates a homeless person sleeping under a bridge out of necessity in the same way the law incriminates a millionaire who would sleep under the same bridge". Anatole France
Canon 3 of the Judicial rules obliges Judges to be "fair" and to "hear" the parties, this canonic rule means that the Judge should treat the sardine and the shark via the "compensatory inequality" mechanism, a well-established public international law principle. Both the sardine and the shark have a different set of protective "arms", very unequal, therefore, the sardines needs extra protection from the State, represented by the Judge. If justice is to be done. Yet, Washington State's Supreme Court, like almost all of the other States of the Union obliges Judges to treat all parties the same. And there are no statutes to remedy this problem.
"...bound by the same rules of procedure and subsantive law as everyone else" (Bly v Henry, 28 Wn.App. 469, 471, 624, P.2d 717 (1980).
Thus, the weaker "sardine" who can not afford a "dolphin" attorney for its tort or family law case and who cannot get a public defender (reserved to "indigent sardines" who allegedly committed a crime) is face to face, in the arena of truth fighting, with an experienced and financially strong "shark". In the same way, financially weak parties who decide to act "pro se" (defending themselves) out of necessity often fail, given the complexity of the law, the expenses of deposition, transcripts and experts and the aggressiveness of law firms. Thus, deprived of the "weapons" of litigation, when the poor party gets his day in court, she or he necessarily "has a fool for a client". As many jurists believe.
Yet, if we are to interpret constitutional and canonic law (i.e. rules which govern the conduct and the mission of Judges) as the French, we must admit that this inequality is a Bastille-like issue which violates Ethics Canons 3.4 and 3.5 and erodes the very core of the Constitution, the Republic, the "Spirit" of the Law. If only because equal access to justice based on the fundamental principles of "equality of arms" and "the equal protection of the laws" is at the core of a democratic Republic. .
In this perspective, a U.S Ambassador to France could not only further the foreign policy goals of the U.S and help France promote a greater respect on internationally recognized human rights and duties, but could act to better harmonize Justice questions between the two countries. As a result, the American People would better learn how French and European civil law and Justice work and be more emboldened to respectfully requests a redressing of this "no meaningful-access to civil Justice" grievance at home. As Justice is at the Heart of Democracy.
Victimes of social injustice are devitalized, unmotivated to serve the Republic, the common good. And this also affects the "ensemble" including, but not limited to the economy. Thus, the United States would benefit from an Ambassador former public international law professor who could contribute in promoting creative audacity, international freshness and constitutional vigor in this realm. Any governmental plan of action that does not redress this constitutional wrong may not withstand the passage of time, even if the Law is effective on counter-terrorism.
"Establish a Shared Security Partnership Program overseas to invest $5 billion over three years to improve cooperation between U.S. and foreign intelligence and law enforcement agencies." (President's agenda)
In bilateral diplomatic relations, it may be necessary to use the instrument of the law to first focus on collective security and commerce issues.
However, a wise leader ought not to forget the lessons of History in this realm, that the downfall of almost all imperial Republics and entities came from within, from the systemic violations of Justice and human rights. Not from an external threat. A small case in point is the diversion of competitive resources on behalf of counter-terrorism and not enough on the domestic front.
"The FBI was aware for years of "pervasive and growing" fraud in the mortgage industry that eventually contributed ot America's financial meltdown, but did not take definitive action to stop it. (...). But the agents with the expertise had been diverted to counterterrorism" (Seattle Post Intelligencer, front page, Jan.28, 2009)
I am presently working on a concrete Franco-American Diplomatic plan of action to contribute in finding solutions to these challenges. Meanwhile, please see my gubernatorial efforts in this realm, notably via the following freedom: Freedom from injustice and freedom from inaccessibility to the court system.
And please click here for a proposed executive order to help to catalyze change in this realm. And double click here to examine on of my gubernatorial campaign messages on this issue