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Ethical Problems with Judicial Activism: Edited Version of a Paper given at a Conference in Beijing organised by the National Judicial College, Beijing, 12 October 2004 and to the Shanghai Judicial College, Shanghai, 19 October 2004.

The Honourable Justice David Ipp[1]

Three forms of judicial activism
In modern times the common law world has seen at least three forms of judicial activism. The first is activism in reforming procedural rules. The second is activism in political and social reforms and the third is activism in human rights. Inherent in each of these forms of judicial activism are difficult and important questions of judicial ethics.
All three forms of judicial activism involve increases in judicial power. The corollary of increased judicial power is increased judicial responsibility. Judicial responsibility is no longer seen as a function of State power; nor as a function of the prestige and independence of the judiciary itself. Rather, it is now regarded as the function of an institution that serves the community. This view requires the judiciary to combine impartiality with responsiveness to the individual members of society, at whose service only the system of justice must work. A former Chief Justice of Australia, Sir Anthony Mason, has said:
"[W]e must recognise that the courts are institutions which belong to the people and that the judges exercise their powers for the people. The requirement that judges respond to the needs of the individual members of society contains within it the expectation that judges will intervene in order to achieve justice." [2]
These principles inform all aspects of judicial activism.
Procedural activism
There is an unmistakeable trend, throughout the common law world, towards increased intervention by judges in the pre-trial and trial process.[3] This is what I mean by procedural activism. The factors that have contributed to this change are manifold. They include both long-term political and social movements and more immediate pressures.
Judicial responsibility is the function of an institution that serves the community. This brings with it a desire that judges should respond to the needs of the individual members of society, and, accordingly, should intervene in the trial process in order to achieve justice.
The moral force of any judgment of a court derives from the fulfilment of the judge's task of deciding the dispute by attempting, fairly and in public, to determine the truth.
Judicial activism in reforming procedure involves judges taking steps, themselves, to cope with increases in litigation and injustices through unnecessary delays and excessive costs. Over the last 20 years what has been called managerial judging has become generally accepted in most developed adversarial judicial systems. Courts have moved away from a passive role in civil litigation to one in which judges actively manage cases in an attempt to minimise delays, encourage early settlement and reduce costs. It is now recognised that procedural rules can be manipulated to benefit the powerful and prejudice the weak. An imbalance in legal representation can work a grave injustice. Judges who insist on being absolutely passive in the courtroom while such manipulation occurs, tolerate, in effect, the injustice that may result. If this is the norm, the courts will lose the confidence of society.
The greater readiness of judges to intervene has brought our system closer to the European civil inquisitorial system. On the other hand, there have been reports that the European systems of inquisitorial justice have themselves become more adversarial. It may be that, with the influence of the European community and the constant communication between judges throughout the world, procedural differences between countries are becoming less marked.
Case management
Case management entails the overall management of pre-trial procedures and the trial itself. Case management is designed to achieve cheaper, swifter and more efficient justice. Case management involves the judge assisting in the determination of the true issues in the case, fixing time limits for the taking of procedural steps, and even, if necessary, restricting questioning of witnesses, the length of addresses and number of expert witnesses who can be called.
In most jurisdictions in Australia it is accepted that courts have a legitimate interest in ensuring that litigation is conducted efficiently and expeditiously.[4] It is recognised that the conduct of litigation is not merely a matter for the parties, but is also one for the court. The court may have regard to the need to avoid disruptions in its lists with consequent inconvenience to the court and prejudice to the interests of other litigants waiting to be heard.
There are a number of problems that have come to the fore with judicial case management.
It is difficult to establish norms and rules governing the exercise of judicial case management powers. Judges make managerial decisions based on their own conceptions of fairness and justice. Some say that the perception of judicial impartiality essential to the adversary system is thereby undermined. There is undoubtedly a danger in judges going beyond conscientious case management to define justice for themselves. Nevertheless, it is now accepted that without managerial judgment the overall state of litigation would be in a far worse condition. The individual litigant's interest in fairness must be balanced against the competing interest in fairness shared by all other current and potential litigants.
In any event, judges are accustomed to making discretionary decisions, many of which are not based on clearly defined standards or rules, but are made "in the interests of justice". In itself, there is nothing remarkable about the judge being a decision maker. The novel aspect, in the adversarial system, of managerial decisions made by a judge, is that they are normally not decisions on the legal merits of the case but take into account other, extraneous, matters, often of economic character, such as the court's limited financial and other resources.
As a safeguard against judicial misconduct, case management takes place in open court, usually with a complete transcript of the proceedings and case management decisions are themselves subject to appellate review.
Another problem is the insidious influence of statistics and time standards. As case management has grown, so have statistic gathering methods. Modern record keeping systems are used with computer technology to measure judicial performance. This may give rise to unfair and illusory results. In consequence, judges may become more concerned with statistics regarding their performance than with the quality of their decisions. Furthermore, forcing judges to act within the confines of time standards may pressure them to use less formal procedures in order to expedite the litigation process. There is no easy answer to these difficulties. The overriding factor, however, is that the limited resources now days available to the courts make case management an essential element in the proper and efficient administration of justice. Realistically, without case management, the lists in most jurisdictions would collapse.
Yet another problem is that, by the very nature of pre-trial case management, judges have to make decisions before all the facts are known. They may overestimate the extent of their wisdom, intrude erratically into the pre-trial preparation and reach ill-founded conclusions in cases about which they know very little. Again, these problems, to a greater or lesser degree, are inherent in case management and case management is necessary for the control of modern litigation. In the long run, these disadvantages can only be reduced, not eliminated. But above all, the best guarantee of justice is the quality of the individual judge.

Judicial activism in political and social reforms
The basic theory

While the duty of the legislature is to enact laws designed to further the common good, the duty of the judiciary is to uphold those laws, and more generally to uphold the constitutional framework and the rule of law.[5]
An emperor said more than 1,200 years ago that judges should judge justly according to the written law, not according to their own inclination.[6] This was long thought to be the judicial ideal. According to this concept of judicial conduct, judges must follow the law and not act upon their own predilections or fancies.[7] It has been said that a judge who feels free to decide cases upon external standards rather than the system's internal content, might as well act upon any subjective standard that he or she finds attractive. The existence of ascertainable law which judicial officers are bound to apply is the key to any system that seeks the benefit of law and order.
The duty of judges, that was at one time universally accepted, is to suppress their preconceptions and leanings of the mind and make decisions based solely on the merits of each individual case. It may be thought that, for this reason, the more acutely judges are aware of their own subconscious attitudes the better judges they will be. They will then better be able to overcome their own biases and prejudices and make findings without being influenced by them. Once again, ideal judicial conduct is epitomised by the blindfolded goddess of justice.
Should the blindfold be removed?
But a movement, contrary to these precepts, has arisen in some parts of the common law world. This movement promotes the idea of judicial activism in the field of social reform and argues that the blindfold should be removed from the goddess. A leading Canadian judge has expressed the view that "the classical image of justice - the goddess blindfolded - is a deficient icon in a complex, multicultural society".[8]
These remarks were made after the decision of the Canadian Supreme Court in R v RDS.[9] In this case a white police officer arrested a black 15 year old male who had allegedly interfered with the arrest of another youth. The accused was charged with assaulting a police officer. The police officer and the accused were the only witnesses, and their accounts of the relevant events differed widely. The Youth Court judge, Judge Sparks, determined that the accused should be acquitted. While delivering her oral reasons, the judge remarked that police officers had been known in the past to mislead the court. She said that police officers overreact, particularly when they are dealing with non-white groups. She said:
"That to me indicates a state of mind right there that is questionable. I believe that probably the situation in this particular case is the case of a young police officer who overreacted. I do accept the evidence of the accused that he was told to shut up or he would be under arrest. It seems to be in keeping with the prevalent attitude of the day. At any rate based upon my comments and based upon all the evidence before the court I have no other choice but to acquit."
The prosecution complained that the comments of Judge Sparks raised a reasonable apprehension of bias and appealed. The intermediate court of appeal overturned her decision.
The Canadian Supreme Court, however, by majority, reinstated the decision of Judge Sparks. It is interesting first to look at the reasons of the minority. They concluded that the judge's comments stereotyped "all police officers as liars and racists, and applied this stereotype to the police officer in the present case".[10] The minority was of the view that the issue was not whether racism existed in Canadian society; rather it was whether there was evidence before the court upon which to base a finding that the particular police officer in question was motivated by racism. They thought that there was no evidence to that effect presented at the trial and emphasised that judicial decisions should not be based on racial or other generalisations.
Two of the judges in the majority, on the other hand, stated:
"The reasonable person does not expect that judges will function as neutral ciphers; however, the reasonable person does demand that judges achieve impartiality in their judging. It is apparent, and a reasonable person would expect, that triers of fact will be properly influenced in their deliberations by their individual perspectives on the world in which the events in dispute in the courtroom took place. Indeed, judges must rely on their background knowledge in fulfilling their adjudicative function".[11]
They said, further:
"An understanding of the context or background essential to judging may be gained from the judge's personal understanding and experience of the society in which the judge lives and works ..." [12]
The proposition that judges are entitled to rely on their "personal understanding and experience of the society", unsupported by evidence from witnesses, in order to believe or disbelieve a particular witness, is not the law in Australia.
One of the two judges who made the remarks in question, l'Heureux-Dubé J, subsequently wrote an article in which she said, in regard to Judge Sparks:
"[T]he trial judge's comments did not evidence an impermissible partiality based on unfounded myths and stereotypes, but rather, demonstrated that she had properly taken into account the reality of the inequitable social context in which the alleged offence was committed, and her own experience of this social context. She then appropriately related this understanding of the world to the conduct of the trial before her. In this sense, the judge was not neutral. But she was impartial.
Judges should not aspire to neutrality. When judges have the opportunity to recognise inequalities in society, and to make those inequalities legally relevant to the disputes before them in order to achieve a just result, then they should do so. Impartiality does not demand that judges close their eyes to the reality of the society in which legal disputes occur, but rather that they remain open minded to the possibilities for deeper understanding that differing viewpoints and experiences can provide".[13]
If this view is correct, the goddess of justice must have her blindfold removed in order to understand the world around her.
However, if this is accepted, there is the clear danger that one will be faced with the notion of the goddess of justice, blindfold removed, being absorbed entirely by her own personal image. Cases will then be decided according to the individual inclinations and prejudices of the judge in question.
In my opinion, the idea that a judge should apply his or her understanding of the social context of each case is capable of allowing the judge to indulge in individual, personal prejudice.[14] Assume that Judge Sparks had said "in my experience black youths often lie when accused by white police officers; therefore, I believe the white policeman". Such an observation would universally be regarded as unacceptable judicial discrimination. It is very difficult then to suggest that it is desirable for a judge to conclude that a white police officer should be disbelieved merely because of the judge's experience, generally, with white police officers when they are in conflict with black witnesses. Such a conclusion, if followed by someone with different life experiences and different social attitudes, could well result in the application of an entirely different criteria. This will give rise to general loss of respect for the rule of law.
Most lawyers, throughout the world, are aware of judicial officers who have displayed generalised prejudices towards different groups in society. Examples are women, persons from minority racial groups, refugees, foreigners, workers, employers, landlords, tenants and others. Accordingly, I do not agree that Judges should not aspire to neutrality.
In my opinion, it is the essence of justice that judges exercise control and discipline over their own feelings and judge each case on its merits, impartially and neutrally, without regard to personal bias and generalisations.
Making new law
In the common law world, judges make law when social, political or ethical attitudes change so fundamentally that they are no longer accommodated by established rules, when new situations evolve that are not covered by existing precepts, and when there is a need to rationalise existing principles.
Lord Reid explained:
"There was a time when it was thought almost indecent to suggest that judges make law - they only declare it. Those with a taste for fairy tales seem to have thought that in some Aladdin's cave there is hidden the Common Law in all its splendour and that on a judge's appointment there descends on him knowledge of the magic words Open Sesame. Bad decisions are given when the judge has muddled the pass word and the wrong door opens. But we do not believe in fairy tales any more."[15]
Even in a civil law system, the courts must still unravel obscurities, ambiguities, and conflicts and fill in gaps between the legislative provisions. In these ways it cannot be denied that judges make law.
Law-making in private law cases that raise social, economic and political issues is a contentious idea. Some judges have strongly criticised what they term judicial activism, that is, too great a readiness to change established laws. On the other hand, there is the attitude of judges epitomised by the famous English judge Lord Denning, who was always ready to take the law in new directions. He referred to those who were more reticent as "timorous souls". He was once asked by a student to make no more changes to the law until the exams were over.
There is no do doubt that some cases frequently enable the judiciary to change the direction of society. Justice McHugh has recognised that "[w]hile most of the work of the courts is concerned with 'the disinterested application of known law', from time to time courts must decide issues that are intensely political, economic and social as well as legal".[16]
In the 1980s and 1990s, deliberate alterations of the law by judges took place with relative frequency. Far-reaching changes were made to land rights, the law of negligence and the law relating to legal representation for persons charged with serious offences. There has now been a reaction to that.
Justice Heydon recently made a number of points regarding judicial activism. He said[17] that the purpose of the rule of law is to remove both the reality of injustice and the sense of injustice. It exists not merely because of the actual remedies it provides for damages, injunctions and other specific remedies, and criminal sanctions. It also exists to prevent a damaging release of uncontrollable forces of disorder and primal urges towards private revenge against wrongdoers by assuaging the affront to human dignity experienced by the victims of wrongdoers. The rule of law channels potentially destructive energies into orderly courses.
A key factor in the speedy and just resolution of disputes is the disinterested application by the judge of known law drawn from existing and discoverable legal sources independently of the personal beliefs of the judge. Judicial activism may be described as using judicial power for a different purpose. Judicial activism in this sense harms the rule of law. Often, judicial activism involves furthering some political, moral or social programme.
It has been said that judges are appointed to administer the law, and not elected to change it or undermine it. Judges are given substantial security of tenure in order to protect them from shifts in the popular will and from the consequences of arousing the displeasure of either the public or the government. They must use this power with great care.
One of the most important functions of a judiciary in a democratic state is to shield the people from illegal conduct by government. This idea stems from the proposition that "the Ruler is under the Law". The Ruler does not have unlimited and despotic power. The Ruler must obey the law as construed by judges. This is the basic principle of parliamentary democracy.
This principle, however, can only work if judges are consistent and steadfast in their application of the law. Once judicial decision-making is arbitrary, inconsistent, and detached from fixed, objective and fair rules of law, it will fail to command the respect and obedience of the people and the system will collapse.
It is in this respect that the doctrine of precedent is of importance. It "is a safeguard against arbitrary, whimsical, capricious, unpredictable and autocratic decision making. It is of vital constitutional importance. It prevents the citizen from being at the mercy of an individual mind uncontrolled by due process of law".[18] Disloyalty to precedent in effect gives judges uncontrolled discretionary power.
However, it must also be recognised that the application of known legal principles will not always be possible. Sometimes novel situations arise to which the known principles cannot be applied. Then we need theories "for deciding whether an existing authority is to be applied, distinguished or overruled".[19] Reliance on precedent is not always possible, or even desirable. Changes in social or political conditions sometimes require new law, and old principles may simply be entirely inappropriate for circumstances not previously contemplated.
Judges' individual political and social beliefs
Judicial activism involving political and social reform is a dangerous phenomenon. By that, I mean activism by conservative judges, to ensure that cases are decided in accordance with conservative values and activism by liberal judges to ensure that cases are decided in accordance with liberal values. Judges should not decide cases in accordance with their personal inclinations.
The problems caused by this kind of judicial activism can be seen in the United States. According to some commentators, in the United States, political and social judicial activism has won the day. There is a strong view amongst many in that country that the function of the courts has become political and the courts are rightly open to public attack on political grounds. They consider that judicial activism in the USA has resulted in a politicised judiciary. If that is right, subjective judging has detracted substantially from the rule of law.
Often the United States Supreme Court has resolved cases by a majority of five to four based, apparently, on ideology rather than the law.[20] Divisions in political philosophy have given rise to great rancour. This has become particularly apparent in cases involving race discrimination, sexual privacy, abortion, rights of the poor, of criminal defendants, and of religious minorities. The division along political lines was particularly apparent in the case involving the disputed electoral returns in the 2000 United States presidential election.[21]
Apart from detracting from the general reputation of the judiciary, judicial activism leads to unpredictable and arbitrary results depending on the subjective intentions of the judge concerned. When the well-known liberal Justice of the US Supreme Court, William Brennan, retired in 1990, the journal, The New Republic, editorialised:
"[Brennan's] passionate judicial activism was unafraid, in a pinch, to leave constitutional text, history, and structure behind. When liberals like Brennan held sway in the courts, judicial activism often led to liberal results; now that 'conservatives' are the ones ignoring legislative history and congressional intentions, Brennan's legacy makes it harder for liberals to cry foul".[22]
According to an American commentator:[23]
"From the perspective of the more liberal [judges] and their supporters, today's Supreme Court has been engaged in a sustained and evil counter-revolution, undermining or destroying the civil rights and civil liberties that the previous Court properly championed. In curtailing affirmative action and civil rights enforcement, in limiting the right to abortion and enhancing the power of police and prosecutors, in rushing executions and curbing the power of the federal government, including the judiciary, today's Court, it is said, has been turning back the clock on social progress and retreating from the institution's own duty to enforce the constitutional promises of liberty and equality.
On the other hand, conservatives, both within and without the Court, approach the innovations of the previous era from the opposite corner. In their view, the previous Court's exaltation of egalitarianism, criminals' rights and sexual freedom was a prime factor in creating the legal and moral decay of the current age. And, to them, most, if not all, of the rights revolution was illegitimate from the outset, a judicial coup d'etat that established the Court as a 'superlegislature,' overturning with no constitutional authority the judgments of elected representatives ...
In light of such pervasive and continuing internal division, the question for the Court, as for the rest of the government, has been whether the institution's own integrity can withstand the corrupting force of bitter disagreement ..."
The antidote to this judicial disease is, as far as possible, the rigorous application of impartiality and responsibility in the use of established precedent. Of course, this should not preclude the principled development of the law so that it keeps pace with changing social and community values, and it cannot preclude the development of new principles applicable to new situations not covered by existing rules. But, as one of the founders of the United States Constitution, Alexander Hamilton, said:[24]
"Considerate men of every description ought to prize whatever will tend to begat or fortify [integrity and moderation] in the court; as no man can be sure that he may not be tomorrow the victim of a spirit of injustice, by which he may be a gainer today."
There has been a call for a return to the classical judicial virtues described as:
"Self-restraint, self-discipline (implying submission to the authority of statutes, precedents, etc), thoroughness of legal research, power of logical analysis, a sense of justice, a knowledge of the world, a lucid writing style, commonsense, openness to colleagues' views, intelligence, fair-mindedness, realism, hard work, foresight, modesty, gift for compromise, commitment to reason, and candour".[25]
It cannot be doubted that every judge should aspire to these qualities. But care must be taken to ensure that judges are not rigid and do not fear change. Fear of change and refusal to adapt to change are themselves engines for injustice. Judges must take great care to strive for the appropriate balance in this difficult area.
Judicial activism involving human rights
What occurred in South Africa in the latter half of the twentieth century provides an important case study of judicial passivity in regard to the abuse of human rights. This case study is redolent with lessons for judges all over the world.
Prior to 1948 there was relatively little institutionalised segregation of races in South Africa. After 1948, when the Nationalist Party came into power, the system of apartheid was implemented. So began what became an all embracing web of racial laws promulgated by Parliament. These resulted in discriminatory laws relating to voting rights, rights to live in residential areas, rights to work in business areas, rights to work in particular occupations, rights to be educated in an equal manner, freedom of movement rights, rights of sexual freedom and marriage. In the cause of white supremacy, people were forcibly removed from their homes. Family members were separated from each other and many were sent to live in impoverished areas. On the grounds of race, the right to vote and the right to work were restricted.
These policies were all implemented by Acts of Parliament. In other words, there were laws promulgated by Parliament which authorised the oppressive and discriminatory system.
When serious opposition manifested itself, the government appealed to patriotism and nationalism. The word went out that the world did not understand the good faith and morality of those in power. The general attitude grew that those who were not for the government were against the nation.
Eventually, the opposition became more organised and went underground. Acts of sabotage occurred. This was followed by further legislation. The power of the security police was increased. They were given vast powers to detain persons for interrogation without trial. Eventually the power to detain without trial became a power to detain indefinitely. Those opposed to the regime attempted to resort to the courts. This led to the government enacting new laws reversing the onus of proof, creating new crimes with vague and broad elements, enabling the State to prove guilt easily and making it more difficult for accused persons to prove their innocence. It became difficult to trace the whereabouts of people who were detained. People began to disappear. There were stories about persons, interrogated by the police, jumping out of the windows of high rise buildings and apparently committing suicide. Allegations were made of police brutality and torture but they were difficult to prove.
Things went from bad to worse but suddenly, after more than 40 years, the tide turned. Nelson Mandela was released from prison and, in 1994, a new regime under a democratic constitution took over the country.
It is against this background that the actions of the courts need to be considered. But before doing so, it should be noted that South Africa has long had a powerful legal tradition. Although the procedure was modelled on English law and the English system, the substantive law was Roman Dutch which was essentially a liberal and humane body of laws. South Africa has produced outstanding lawyers and judges. Those who emigrated from the country included three members of the House of Lords and the Chief Justice of Massachusetts in the United States. Other barristers in England have become leaders of the profession.
Many of the lawyers who remained were also of the highest quality and imbued with the tradition of individual liberty. Some were appointed to the Bench. Humanitarian South African judges had a schizophrenic task. On the one hand, embedded in legal tradition, was respect for human beings, and the idea that statutes should be interpreted to give maximum effect to human liberty. On the other hand, the judges were required, as part of their daily work, to give effect to laws that were discriminatory, unjust and instruments of oppression.
In the result, a vast number of the judges adopted a literalist approach. They interpreted the racist statutes in a literal way and in support of the ruling regime. I will give a few examples.
In Minister of the Interior v Lockhat [1961] 2 SA 587 (A) the Appellate Division, South Africa's highest Court of Appeal during the apartheid regime, was faced with a challenge to the validity of a proclamation dividing the city of Durban into group areas. The ground of challenge was that whites had been given the best areas while only the poor areas were available to Indians and that suitable accommodation in the Indian areas would not be available for some time. Mr Lockhat, an Indian, argued that the effect of the division was to discriminate to a substantial and therefore unreasonable degree against Indians, and such unreasonable discrimination had to be expressly authorised by the enabling legislation to be valid.
The trial judge upheld the challenge on the ground that, in the absence of specific authority in the statute to the contrary, common law presumptions must prevail. He said:
"The exercise of a power to proclaim group areas can and should ... be exercised without the inevitable result that members of different races are treated on a footing of partiality and inequality to a substantial degree."
The trial judge's decision was taken appealed. The highest court in the country overturned the decision of the trial judge. Although the power to discriminate unreasonably was not expressly given in the acts, the Court thought that it was "clearly implied". According to the judgment of the Appellate Division, it was not for the Court to decide whether the Group Areas Act would be for the common good of all the people. The question before the Court was purely a legal one, namely "whether this piece of legislation impliedly authorises, towards the attainment of its goal, the more immediate and foreseeable discriminatory results complained of".[26] Accordingly, the Indian people were required to move out of their homes in which they had lived for very many years and move into impoverished and undeveloped areas.
In 1964 a Cape Town barrister, Albie Sachs, was detained under security legislation. Sachs applied for a declaratory order that the detaining authority was not entitled to deprive him of "any of his rights and liberties save to detain him for interrogation and save to deprive him of access to other persons".[27] Sachs sought an order that he was "entitled to at least the same rights and liberties while in custody as are enjoyed by awaiting trial prisoners or other non-convicted persons who are being detained under the provisions of some other law". He sought an order that he should be allowed out of his cell for reasonable and adequate exercise and recreation and to be permitted to receive an adequate supply of reading and writing materials, subject to the scrutiny of those detaining him. He asked to be provided with the ordinary comforts of life such as soap and similar materials. The relevant statute did not deal with any of these issues. An intermediate appellate court granted Mr Sachs the orders sought. The judges held that a detainee had the right both to exercise and to an adequate supply of reading matter and writing material. The judges said that to deprive a detainee of that right amounted "in effect to punishment" and that it would be "surprising to find that the legislature intended punishment to be meted out to an unconvicted prisoner".
The Appellate Division, however, overruled this decision. They pointed out that the offences covered by the statute were directed against the safety of the State itself. The Court considered that the statute impliedly authorised "psychological compulsion". Because of what the Court understood to be implied in the statute, it attributed the intention to Parliament of authorising the compulsion to which Mr Sachs was subjected by the police.
The Court recognised, nevertheless, that it had a choice between two interpretations of the statute. The first was that Parliament intended that the detainee should continue to enjoy all his ordinary rights and privileges, save only for those that were necessarily impaired either by the very fact of detention itself or by the other express provisions of the section. On the other hand, Parliament could have intended that the continued detention should be as effective as possible but "subject only to considerations of humanity as generally accepted in a civilised country". The Court considered that the second was the true purpose even though for detainees, "broadly ... classed as intellectuals", the deprivation of reading matter or writing materials during their detention might result in "psychological compulsion". So, Mr Sachs remained detained, without trial, in this way.
Ironically, after change had come to South Africa and a new constitution was promulgated, Mr Sachs became Justice Sachs, a judge of the Constitutional Court of South Africa, the highest court in the land.
Generally speaking, under the old regime, the judges nearly always believed the police. They imposed heavy sentences on persons accused with crimes against the State. The death sentence was frequently ordered. The courts, generally, refused to interfere with administrative orders made by the government and government offices. They refused to make orders interfering with police action in detaining people without trial and with the conditions under which they were imprisoned.
The courts were particularly sensitive to criticism. In 1971, a legal academic, Professor Van Niekerk, offered a simple solution for judges who had to deal with the dilemma that judges faced in regard to dealing with police evidence in the face of constant allegations of torture. He suggested that, as it was widely accepted that solitary confinement for a long period is in itself torture, judges should simply refuse to accept any evidence procured in the confinement. This suggestion was not adopted. Van Niekerk was subsequently charged with contempt of court and attempting to defeat or obstruct the ends of justice. Eventually the Appellate Division found Van Niekerk guilty of contempt of court and held that he had the intent of attempting to defeat or obstruct the course of justice.[28] The Appellate Division considered that Van Niekerk's views were designed to influence the court in actual cases. He was asking the court to engage in conduct which the court said would "manifestly be a gross dereliction of duty" for he was asking judges to act "contrary to their obvious duty to consider all evidence on its merits". This approach tended to stifle any further criticism of the judges.
After change had occurred in South Africa, the South African Truth and Reconciliation Commission investigated the conduct of the judiciary during the apartheid regime. The judges mounted a strong defence of themselves. They were supported by an eminent former member of the South African Bar, who became an Acting Judge of the Constitutional Court, and was a leading member of the English Bar, Sir Sydney Kentridge QC. In an article published in the September/October 1994 edition of the journal "Counsel" he said:
"During the apartheid years in South Africa many people helped keep alive the idea that the individual had rights and liberties which the state is not entitled to infringe. But there are not many organised institutions of which this could be said. Among them were certainly the Bar and the Supreme Court."
He remarked further:
"Throughout the period the South African Supreme Court as a whole remained an independent court which in an appreciable number of cases provided some protection against the excesses of the executive ... Government hopes that their appointees would take their side were frequently disappointed."
Nevertheless, many commentators have severely criticised the conduct of many of the judges of the court.[29] According to one commentator [30] it was only a handful of judges who sat on the provincial benches who maintained fundamental rights and to whom the new legal order now owes a great deal.
Judge Gerald Friedman, one of the old order judges who had done much to uphold the rule of law, accepted that "the courts' record as an upholder of the rights of the individual in the application of security legislation, cannot, with obvious exceptions, be defended".[31] Judge Friedman described the dilemma for the courts as follows:
"The detainee would testify how he was assaulted. The police or security force members, on the other hand, would go into the witness box and deny these allegations. In this they would be corroborated by the district surgeon [a state medical officer] who would testify that no evidence of any assault was found on the detainee. One knows now from the evidence which has emerged at hearings of the [Truth and Reconciliation] Commission that many of these witnesses were prepared to lie to the Court. Despite cross- examination it was very often impossible to find that their testimony was untruthful since the court has, in each case, to make its findings on the evidence which is placed before it. That evidence included the testimony of the magistrate or police official who took down the confession, that the person making it had no visible signs of recent injuries.
It must, however, be pointed out that in a number of cases evidence of a confession was in fact rejected.
The fact that it was commonplace for detainees to allege that they had been tortured, did not entitle the court, in any particular instance, to depart from the principle that each case must be decided on its own facts."[32]
Today, the principal criticisms of the South African judges are that they failed to give a liberal interpretation to statutes where there was ambiguity and they construed statutes to give effect to government policy and not human freedoms. The criticism that was stifled in the past now became very loud indeed.
South Africa is not alone amongst western countries which have adopted far- reaching security legislation. Such legislation exists in Northern Ireland and similar criticisms have been made about the judiciary there. In the USA, the criticisms of the judiciary in regard to the conduct of cases involving black people in the southern states prior to 1970 is well known. The legislation that has given rise to the detention in Guantanamo Bay is open to serious question. Australia and New Zealand have now also legislated for detention without trial.
There are many lessons to be learned from the South African experience. Principally, it should be recognised that the erosion of human rights happens very gradually and indeed, at times, imperceptibly. Inexorably, however, fidelity to the letter of the law overcomes personal and moral impulse. The decision to apply the letter of the law as opposed to protecting fundamental human rights becomes easier as judges persuade themselves of the force of their duty to the positive law and government policy. The court then becomes a chamber legitimising oppression. It gives substance to claims made by the government that the rule of law exists under the particular regime.

Appropriate judicial conduct must tread a fine line between judicial activism of the kind that results in judges making new laws to satisfy their own political, social beliefs, and judicial alertness to protect human rights by construing legislation in a humanitarian way and in being acute to examine claims of police and other authoritarian misconduct against individuals. This is a difficult task indeed, but essential for the proper maintenance of the rule of law. Above all, it is consistent with the judicial duty of neutrality and impartiality.


( Edited version of a paper given at a conference in Beijing organised by the National Judicial College, Beijing, 12 October 2004 and to the Shanghai Judicial College, Shanghai, 19 October 2004.
1 Judge of Appeal, Supreme Court of New South Wales.
2 Sir Anthony Mason, "The Role of the Courts at the Turn of the Century" (1993) 3 JJA 156 (at 166).
3 Ipp JA, "Judicial Intervention in the Trial Process" (1995) 69 ALJ 365.
4 See, for example, Part 1, rule 3(1) of the Supreme Court Rules 1970 (NSW).
5 See Collins, "Democracy and Adjudication" in MacCormick and Birks (eds), The Legal Mind (Clarendon Press, 1997) at 67.
6 Justice J B Thomas, Judicial Ethics in Australia (2nd ed, LBC, 1997) at 61.
7 Ibid.
8 Justice C L'Heureux-Dubé, "Reflections on Judicial Independence, Impartiality and the Foundations of Equality" CIJL Yearbook, Vol VII p 106.
9 [1997] 3 SCR 484.
10 R v RDS [1997] 3 SCR 484 (at [6] per Major J).
11 Id at 507, [38]-[39] per L'Heureux- Dubé and McLachlin JJ.
12 Id at 508, [44] per L'Heureux-Dubé and McLachlin JJ.
13 L'Heureux-Dubé J, "Reflections on Judicial Independence. Impartiality and the Foundations of Equality", CIJL Yearbook, Vol VII at 105-106.
14 See Ipp JA, "Judicial Impartiality and Judicial Neutrality: Is there a difference?" [2000] Aust Bar Rev 212.
15 Lord Reid, "The Judge as Lawmaker" (1972) 12 JSPTL 22 at 22.
16 Justice M McHugh, "The Strengths of the Weakest Arm", Keynote address, Australian Bar Association Conference, Florence, 2 July 2004.
17Justice J D Heydon, "Judicial Activism and the Death of the Rule of Law" [2003] Aust Bar Rev 110 at 112.
18 Id at 132.
19 Justice K Mason, "What is wrong with top-down legal reasoning?", Sir Maurice Byers Memorial Lecture, 26 February 2004.
20 See Lazarus, Closed Chambers (Penguin Books, 1999).
21 Bush v Gore 531 U.S. 98 (2000).
22 "What Brennan Wrought" The New Republic, August 13 1990 at 7, quoted in Glendon, A Nation Under Lawyers (Farrar, Straus and Giroux, 1994) at 165.
23 Lazarus, op cit, at 7-8.
24 Federalist Papers, No 78.
25 Judge Richard Posner, The Federal Courts: Crisis and Reform (Harvard University Press, 1985) at 220.
26 Minister of the Interior v Lockhat [1961] 2 SA 587 (A) at 602.
27 Rossouw v Sachs [1964] 2 SA 551 (A).
28 S v Van Niekerk [1972] 3 SA 711 (A).
29 Dyzenhaus, Judging the Judges, Judging Ourselves (Hart Publishing,1998) Chapter 2.
30 Id at 52.
31 See Dyzenhaus, Id at 53.
32 See Dyzenhaus, Id at 63-64.

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