In the annals of legal history, the year 1824 marked a pivotal moment. It was the year that the oldest legal Scottish distillery was founded in Moray, Scotland and it has operated continuously save for a stint during World War II. The distillery remains open to date. 1824 was also the year when Lord Borrough J. in the case of Richardson v Mellish[1] found himself confronted with a formidable task in grasping, situating, and dissecting the elusive notion of public policy. As he endeavoured to delineate this elusive concept, he drew a vivid analogy which has withstood the test of time: it was akin to taming an unruly horse, where once it veered off course, the equestrian had no ideas as to its ultimate destination. Now, nearly two centuries later, Lord Borrough-whose legacy has outlived many-is but a distant memory, the world has transformed into a tightly-knit global village, and yet, this persistent conundrum continues to perplex us.
In this extensive mosaic of governance, the ever-evolving question of what defines public policy is a relentless enigma. It is a debate that not only reverberates through the hallowed halls and corridors of justice but also echoes within the bustling lecture theatres, where the brightest legal minds clash in intellectual combat against both their peers and erudite professors of law. Moreover, the inner sanctums of legal practitioners are not immune to its grip. Does this enduring discourse serve as a stark reminder that, despite our best efforts, we may never truly reinvent the wheel? It is a riddle that leaves us, too, pondering in the shadows of uncertainty.
If such a basic but fundamental concept is yet to gain a universally accepted definition, the question that begs an answer, and one that will perhaps linger around for quite a while is, has the education system the world over become so diluted that all it promotes is academic and intellectual laziness? Perhaps, perhaps not.
Public policy has been used as a justification for virtually all acts of governments, both the good, the bad and the ugly. One might wonder, to what benefit does its invocation provide to the public in general, and justice seekers in particular? In likening it to an unruly horse without a sense of direction, two rebuttable presumptions come to mind. First, that this derives from the fact that there is lack of a uniformed or watertight yardstick for determining what constitutes public policy in each particular situation, and secondly, that there has been a tendency for the concept to be exploited for self-serving purposes, rather than for the benefit of the public.[2]
In the case of Christ for All Nations v Apollo Insurance Co. Ltd [3], Ringera J., observed as follows:
An (arbitral) award could be set aside under Section 35(2) (b) (ii) if the Arbitration Act as being inconsistent with the public policy of Kenya if it is shown that it was either (a) inconsistent with the Constitution of Kenya or to other laws of Kenya, whether written or unwritten or (b) Inimical to the national interest of Kenya or (c) contrary to justice or morality. The first category is clear. In the second category I would without claiming to be exhaustive include the interest of the national defence and security good diplomatic relations with friendship nations and the economic prosperity of Kenya. In the third category, I would again without seeking to be exhaustive include such considerations as whether the award was induced by corruption, fraud or is representation.
If the above test is anything to go by, this paper opines as follows: first, as regards inconsistency with the law of Kenya, it is trite law that a party cannot use the court process to aid an illegality. As was held in the case of Republic versus Anti-Counterfeit Agency and another exparte FRM (EA) Packers Limited and another [4], a decision maker cannot be required to act against clear provisions of a statute just to meet one’s expectations, otherwise his decision would be out rightly illegal and a violation of the principle of legality- a key principle in the rule of law.
In the case of Stephen Wanjau Karanja v Nairobi Women’s Hospital Limited [5], Mativo J. held that public policy concerns the body of principles that underpin the operation of legal systems in each state. He went on to state that these principles address the social, moral and economic values that tie a society together-values that vary in different cultures and change over time.
As regards the second test and noting that whereas national interest is a very broad term such that it is very difficult to define with a certain level of precision and certainty, contemporary jurisprudence indicates that it entails a nation’s national security, economic, military, social and cultural ambitions, which once incorporated, give the nation an advantage in safeguarding its interests, both locally and at the international plane.[6] This buttresses our earlier position that public policy can be used as a justification for literally any act of government, whether legal or otherwise.
Flowing from the reason that law regulates behaviour either to reinforce existing social expectations or to encourage constructive change, and that laws are most likely to be effective when they are consistent with the most generally accepted societal norms and reflect the collective morality of the society, it is the doctrine of public policy that seeks to buttress the same and repulse any act to the contrary.
From the above, it can be discerned that public policy adopts a multifaceted role within the realm of law. It acts as a guiding force, aligning the legal framework with the ever-evolving values and expectations of society. In essence, public policy serves as a crucial bridge between the law and the collective conscience of a society. Or at least it is expected to do so.
In the case of Betamax Limited vs State Trading Corporation [7], the Supreme Court of Mauritius applied the test in determining the nature and scope of public policy, it set out the following terms:
“The breach of the legal provisions must be flagrant, actual and concrete. But it is not any legal breach which would suffice to set aside the enforcement of an award. The threshold is quite high; it should be the breach of fundamental legal principle, a breach which disregards the essential and broadly recognised values which form part of the basis of the national legal order, and a departure from which will be incompatible with the state’s legal and economic system.”
The Court- in what has come to be deemed as “the ultimate taming of the unruly horse”-concluded that the Public Policy Act (of Mauritius) reflects the Public Policy of the people of Mauritius in prescribing and ensuring and ensuring high standards of integrity, free and open competition, and protection from fraudulent and corrupt practices in the award of major public contracts with a view to securing the efficient use of the public funds of Mauritius.
However, it is essential to recognize that the application of public policy can be complex and context-dependent. Whereas setting a high threshold is crucial to prevent misuse, it also requires careful consideration in individual cases. Striking the right balance between upholding the rule of law and addressing exceptional circumstances remains a challenge, and it is a responsibility that the judiciary must continue to navigate with prudence.
From the above case, the Supreme Court introduced a rigorous test to evaluate the nature and scope of breaches in public policy, with significant implications for the enforcement of arbitral awards. This test, actively endorsed by the court, imposes a stringent standard on those who seek to challenge the validity and legality of such awards, requiring that any breach be both flagrant and demonstrable. Mere technical or minor infringements fall short of the threshold set by the court. Moreover, the court’s decision explicitly emphasizes that the breach should transcend routine legal violations, striking at the core of fundamental legal principles, thereby rendering them incompatible with a nation’s legal and economic system. This judicial stance reinforces the need for the society’s commitment in upholding integrity, fostering competition, and safeguarding efficient utilization of public funds, all enshrined in the doctrine of public policy.
This paper is of the opinion that the Supreme Court of Mauritius’ interpretation of public policy in the Betamax case underlines the profound significance of public policy in shaping how a country ought to deal with the basic but yet sacrosanct tenets of its people, in chatting the way forward. By affirming the role of public policy, the court articulates its function in maintaining elevated standards of integrity, ensuring a climate of open competition, and shielding against fraudulent and corrupt practices, especially in the allocation of major public contracts.
The danger posed by not having a clear and universally accepted definition of public policy is evident in the potential for confusion, abuse of power, legal uncertainty, and inconsistent application of the law within the legal and governance systems. To address these challenges and work towards a universal definition of public policy, several proposals can be considered:
Firstly, legal scholars, policymakers, and experts from various jurisdictions should engage in a collaborative effort to develop a comprehensive and inclusive definition of public policy. This process should take into account the diverse cultural, social, and legal contexts that shape its interpretation.
Secondly, international institutions, civil society organizations and forums of such a nature ought to facilitate discussions so as to establish common principles and guidelines for defining public policy in the context of international relations. This would promote consistency and understanding in global interactions.
Moreover, national governments should prioritize the clarification of public policy in their legal systems and ensure that these definitions are reflective of their societal values and objectives. This may involve reviewing existing laws and regulations to incorporate well-defined public policy considerations.