| by Dr. Ruwantissa Abeyratne

( April 25, 2014, Montreal, Sri Lanka Guardian) Deputy Prime Minister and Home Affairs Minister of South Korea Teo Chee Hean announced earlier this year during the ministry's Committee of Supply debate that the Ministry would set up an independent panel to review the findings of internal investigations into cases of serious alleged misconduct by an officer in his official capacity. The minister said that wilful misconduct would be applicable to cases which have resulted in death or serious injury, cases which obstruct, prevent, pervert or defeat the course of justice, or instances where it is in the public interest to do so.

Just weeks later, on 16 April 2014 the South Korean ferry MV Sewol, en route to Jeju from Incheon capsized while carrying 476 people, mostly secondary school students. As of mid afternoon Wednesday (23 April) in South Korea, 152 people had been confirmed dead while 150 others remained missing. The captain of the ferry and others deemed responsible were arrested on suspicion of negligence, and the President of South Korea is reported to have said that the offence committed by the captain was tantamount to murder.

On 13 January 2012 the Italian cruise ship Costa Concordia sank after it capsized in the waters of Tuscany, resulting in the loss of 32 lives. The ship was carrying 4,252 people from all over the world, and was on the first leg of a cruise around the Mediterranean Sea, when it hit an object on the sea floor during a planned near-shore salute to the local islanders. The disaster was followed by allegations that the captain was guilty of negligence and misconduct and a judicial hearing followed.

The degree of negligent conduct required of a person in charge of transporting passengers and cargo has been set out in clear terms both in cases concerned with the responsibility of a captain at sea and a pilot in command of an aircraft. Brett L.J. delivering judgment on a captain of a ship said in 1879 : " Captains of ships are bound to show such skills as persons of their position with ordinary nerve ought to show under the circumstances".

In air transport the carrier's liability for death or injury to persons is limited except when the carrier or its employees are guilty of wilful misconduct. The basis of liability in negligence is founded on the principle that when a person owes a duty of care to another, a breach of such duty grounds an action in negligence against the offender. In a case decided in 1976 Bristow J. held that: " there are activities in which the degree of professional skill which must be required is so high and the potential consequences of the smallest departure from that high standard are so serious that one failure to perform in accordance with those standards is enough to justify dismissal. The passenger-carrying airline pilot, the scientist operating the nuclear reactor, the chemist in charge of research into possible effect of, for example, thalidomide, the driver of the Manchester to London express, the driver of an articulated lorry full of sulphuric acid, are all in the situation in which one failure to maintain the proper standard of professional skill can bring about a major disaster".

Wilful misconduct has been defined to generally mean a knowing violation of a reasonable and uniformly enforced rule or policy. It means intentionally doing that which should not be done or intentionally failing to do that which should be done, knowing that injury to a person will probably result or recklessly disregarding the possibility that injury to a person may result.

The question that would arise in the context of politics and government is whether, corruption, cheating and military atrocities aside, political leaders who are entrusted with the lives and welfare of their constituents who depend on those whom they elect to look after them could be found guilty of wilfully misconducting themselves, thereby prejudicing the lives and interests of the people they lead. Would wilful misconduct mean not caring to even visit a remote village for years; not providing necessary means and support to people who eventually commit suicide out of poverty and desperation? Would politicians face the offence of wilful misconduct in a court of law on the grounds that, when given the responsibility, they failed, causing the death of their constituents?

If the legal requirement for negligence is based on a dereliction of a duty of care, would not a politician be bound by that duty of care towards his constituents? and if he breaches that duty, should he not face the consequences that others face? Are politicians not required to have the professional skills to run a country? Of course, one could argue that such politicians would not be re-elected. This is a tenuous argument that would tantamount to saying that analogically, the price that public officers and other professionals would have to pay for wilful misconduct is that they will not be re-appointed after their tenure. Instead they are dismissed from service, criminalized and imprisoned.

In the 2003 British case of Porter v. UK, the applicant was a Conservative councillor in the City of Westminster. Under her leadership a policy was adopted of selling quotas of council houses at favourable rates to suitable owner occupiers to increase the number of Conservative voters in various wards. She was charged with wilful misconduct that resulted in the loss of public funds. The defendant was a holder of public office, not a politician and certainly not a political leader.

One could argue that this anomaly lies in philosophy. Thomas Hobbes, known as the father of modern political philosophy based his argument for government on the basis that those who govern are supreme and that we should give our obedience to an unaccountable sovereign (a person or group empowered to decide every social and political issue). Hobbes argued that if this unquestioning obeisance is not paid to the sovereign we could face anarchy, insecurity and chaos which could eventually lead to civil war. His main thesis was that humans could only live in peace and harmony if the sovereign was held unaccountable.

John Locke, another British philosopher who came after Hobbes, propounded an anti authoritarian theory of the State where he maintained that that the divine right of kings is supported neither by scripture nor by the use of reason. He strongly disagreed with the popular belief that might makes right and relied heavily on natural laws that ensured the right of the person.

The desired harmony between moral goodness and legitimate authority that would make a political leader answerable was anathema to Machiavelli who, in his seminal work The Prince unequivocally claimed that morality or moral philosophy has no place in judging legitimate and illegitimate uses of power. He argued that authority and power are essentially coequal and that whoever has power has the right to command. Machiavelli posits that the only real concern of the political ruler is the acquisition and maintenance of power.

Leadership should require the highest degree and level of professionalism and care. The BBC world news commentary on the Indian elections was quite telling where they interviewed villagers who had not seen their elected representatives since they were elected, and who were in various stages of poverty and despair. Is this not wilful misconduct?

The author is former Senior Legal Officer at the International Civil Aviation Organization.