The changing face of justice

JOHN Forsyth describes how members of the Scottish legal system play a part in improving international jurisprudence

THIS will be a big week for dedicated judge-spotters in Scotland. A delegation of 11 members of the South African Constitutional Court and Supreme Court of Appeal is arriving in Edinburgh for three days of discussion with eight judges from the UK including the Lord Chief Justice of England, Lord President of the Court of Session and a Northern Ireland Justice of Appeal.

There have been a number of such exchanges in recent years between the higher judiciary within the UK and those of other jurisdictions including Israel, Canada, the US Supreme Court, France, Spain and India.

The moving force behind bringing this gathering to Scotland is Lord Hope of Craighead, former Lord President in Scotland and now a Law Lord in Westminster. "The exchange with the Indian judiciary came to Scotland two or three years ago and was very successful. It was very well-run with committed support from the Scottish Executive. It helps that Edinburgh is a smaller city and gives the visiting delegation a sense of place."

It is manifest that this week's exchanges are taken very seriously by the participants. There will be formal sessions on both Friday and Saturday. Discussions have taken place over a period of months on agreeing the four topics that will be explored and draft papers have been exchanged in advance.

The South African delegation is led by Deputy Chief Justice, Dikgang Moseneke: "There is a serious purpose to this meeting between the two jurisidictions. The preparation determines the quality of the discussion."

This isn't Mr Justice Moseneke's first visit to Scotland. "I have been to St Andrews to play golf," he says. "I think it would be accurate to say that was a less celebrated encounter than that I anticipate with my judicial colleagues this week. I should only describe it as a privilege to play the courses rather than a triumph over them."

Lord Hope is an enthusiast for the notion that personal contact can illuminate the route each jurisdiction takes to common issues. "These exchanges are directed at a deeper understanding of each other's approaches to the matters brought before the higher courts. We are always likely to read each other's judgments on relevant cases. Matters of comparative law are coming before the courts all the time. But these gatherings give us a chance to meet each other, hear each other speak and get a better understanding of the subtle thinking that led to conclusions on paper."

The four areas for discussion this week are: the right of access to housing, comparing section 26 of the Constitution in South Africa and article 8 of the European Convention on Human Rights; judicial independence; the effects of the European Convention on Human Rights and the South African Constitution on privacy laws; and proportional forfeiture of the proceeds of crime. There are common underpinnings in particular to the jurisprudence between Scotland and South Africa. But the big difference is while the principles of Scots common law stretch back centuries, South Africa is working to a constitution barely a decade and a half old. In legal terms, the ink is still wet.

Mr Justice Moseneke was one of those involved in drawing up the post-apartheid constitution. "We had the jurisprudential freedom and room for creativity which I would suspect contrasts with a long standing jurisdiction like the United Kingdom with inherent constraints in tradition and precedent. The excitement is so obvious. It is palpable in our judgments. They seek to reorder power relationships in society which may be more difficult in your society."

In its first flowering, the South African Constitutional Court rejected the arguments for capital punishment. It struck down discrimination on grounds of sexual orientation. It directed the government to provide Aids related drugs.

There are other differences too. Several of the South African delegation have painful personal experience of justice – on the receiving end of criminal prosecution and civil discrimination. Mr Justice Moseneke was arrested, detained and convicted of participating in anti-apartheid activity at the age of 15. He was sentenced to ten years imprisonment which he served on Robben Island, which was where he began to study first English and then law.

"It was a formative experience and a necessary experience at that time. All thoughtful young people at that time took up the cudgels against apartheid. The price was imprisonment, and death for some. It came with the territory, with the times. It was indispensable. But beyond that, as you grow, you understand the responsibilities that you must have in the new society.

"However, time passes and so do formative experiences. New judges will not be as close to the fire as we were. They will have had quality formal education and experiences based on an assumption of equality rather than the struggle for it. That will be reflected in time in our jurisprudence."

Whatever the differences in the route to the bench of the senior judges in Edinburgh this week, they share some concern about the robustness of the law and role of judges in a time of increasing social challenge, mass movement of people, international criminal activity and economic distress. Judges are not always popular in their own country; the discussion on judicial independence may be the most pertinent of all.

Mr Justice Moseneke believes judges have to state their case and stand their ground. "It is their bounden duty to protect their independence for the benefit of society at large. Around the world people are being a little more careful to examine whether legislation or executive conduct poses any threat to our ability to dispense justice without fear or favour.

"The law will inevitably change and be recalibrated. I have no doubt about that. There may have to be give and take between specific rights and more generalised human rights.

"As the world changes we will have to change including our notion of what rights are central to our notion of human dignity."