COMMONWEALTH MAGISTRATES’AND JUDGES’ASSOCIATION … · Dr Booshan Domah (Mauritius ... Mr...

Journal of the Commonwealth Magistrates’

and Judges’ Association

Vol 15 no. 1 June 2003




COMMONWEALTH MAGISTRATES’AND JUDGES’ASSOCIATIONEstablished in 1970

Registered Charity (LTK) No. 800367 Company Limited by Guarantee Reg. No. 1942930

PATRONHer Majesty the Queen

PRESIDENTChief Justice Richard Banda (Malawi)

EXECUTIVE VICE-PRESIDENT AND HON. TREASURERMr Michael Lambert FCA

IMMEDIATE PAST PRESIDENTMr David Armati (Australia)

LIFE VICE PRESIDENTSThe Hon Judge Sandra Oxner

The Hon. Justice Kipling Douglas

CARIBBEAN NORTH ATLANTIC & MEDITERRANEANREGIONAL VICE PRESIDENT REGIONAL VICE PRESIDENTMrs Clover Thompson -Gordon JP (Jamaica) VacantCOUNCIL MEMBERS COUNCIL MEMBERSMrs Sybil McLaughlin NH JP (Cayman Islands) Sheriff Douglas Allan (Scotland)Mr Kwasi Bekoe (Trinidad and Tobago) Mr Graeme Garden JP (England & Wales)

EAST CENTRAL AND SOUTHERN AFRICA PACIFICREGIONAL VICE PRESIDENT REGIONAL VICE PRESIDENTChief Magistrate Joe Raulinga (South Africa) VacantCOUNCIL MEMBERS COUNCIL MEMBERSPrincipal Resident Magistrate Gertrude Mr Frederick Field (Australia)Chawatama (Zambia) Mr George Manuhu (Papua New Guinea)

Mr Wilson Masulu Musene (Uganda)

INDIAN OCEAN WEST AFRICAREGIONAL VICE PRESIDENT REGIONAL VICE PRESIDENTDato’ Muthusamy Ramalingam (Malaysia) The Hon Mr Justice Mensah Quaye (Ghana)COUNCIL MEMBERS COUNCIL MEMBERSDr Booshan Domah (Mauritius) Magistrate Paul Evande Mwambo (Cameroon)(Vacancy) Mr Dan Ogo (Nigeria)

CO-OPTED COUNCIL MEMBERSThe Rt. Hon the Lord Hope of Craighead (UK)

Mrs Claudia Latilawa Taylor (Sierra Leone)Mr Harry Mawdsley (England & Wales)

SECRETARY GENERAL: Dr Karen BrewerAuditors: Alliotts

EDITOR OF COMMONWEALTH JUDICIAL JOURNALMrs Nicola Padfield

EDITORIAL BOARDDr Peter Slinn (Chairperson) Judge David PearlMr Eric Crowther Judge Motah SinghMr Geoffrey Care Ms Di Stafford

CMJA, Uganda House, 58-59 Trafalgar Square, London WC2N 5DX, U-K. Tel: +44 207 976 1007Fax: +44 207 976 2395 Email: [email protected]/ [email protected] website: www.cmja.org

This journal is generously funded by The Commonwealth Foundation

COMMONWEALTH MAGISTRATES AND JUDGES ASSOCIATION(Registered Charity 800367)

AIMS• to advance the administration of the law by promoting the independence of the judiciary;• to advance education in the law, the administration of justice, the treatment of offenders and

the prevention of crime within the Commonwealth;• to disseminate information and literature on all matters of interest concerning the legal process

within the various countries comprising the Commonwealth.

MEMBERSHIPAssociations of the judiciary of Commonwealth countries are Members whilst individual magistrates,judges and court administrators may become Associate Members

ACTIVITIESPan-Commonwealth Conferences; Regional Meetings and Workshops facilitating communicationsand co-operation between the different countries of each region; Study Tours and Exchange Visits;Judicial education seminar

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COMMONWEALTHJUDICIALJOURNAL

CONTENTS

EDITORIAL 2

REPORT FROM THE CHAIRMAN 3

PROFILE Sir David Simmons BCH, KA 4

Dame Sian Elias The Usages of Society and the Fashions 5of the Times (W[h]ither the Common Law?)

Lord Woolf The International Role of the Judiciary 17

Kaniye S. A. Ebeku Judicial Contribution To Sustainable 23Development In Developing Countries:An Overview

Judge Peter Boashier Judicial Education in the Pacific 30

Michael Moss JP The Jewish Ethic of Justice 31

MCC Mkandawire The Malawi Legal System 33

COMMONWEALTH JUDICIAL 39REPORTS

BOOK REVIEWS 45

Journal of theCommonwealth Magistrates’ andJudges’ Association

Vol 15 No 1 June 2003

39285 Com Jud journal text.p65 6/13/03, 11:52 AM1

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©CMJA

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As you read this you will either be planning yourtrip to Malawi or you will have sadly acceptedthat you will not be attending the 13th TriennialConference of the CMJA. In fact, you shouldn’taccept you can’t get there: there is a terrificprogramme planned and you should registerNOW. We shall seek to cover the programmehighlights in the next issue. For this issue, we seekto offer a taste of Malawi with an article fromCharles Mkandawire. The issue also includeslessons from history in reviews of books on oldercases which should not be forgotten. Moremodern developments are explored in Dr Ebeku’sdiscussion of the judicial role in sustainabledevelopment. We are particularly pleased toreport the wise words of the Chief Justice of NewZealand and the Lord Chief Justice of England.

Readers should be aware that, unlike most 30year olds who hope to have reached financialindependence by this age, the same cannot be saidof the Commonwealth Judicial Journal. You willbe aware if you are an associate member that ourannual subscription does little more than coverthe costs of delivery: it certainly does not coverthe costs of producing the Journal, or indeed theexpenses of running the CMJA more generally.Country affiliations are also I gather not payingtheir dues on time which can cause seriouscashflow difficulties at the Secretariat. We havebeen very lucky over the years to have had thegenerous support of the CommonwealthFoundation to allow us to produce this Journaland to send it to judges and magistrates in everyCommonwealth country. As they reconsider theirgrant system, we cannot sit back and simplyexpect the money to come flowing in. There arethose out there who consider that judges andmagistrates should not be priorities for charitablelargesse, that a judges’ and magistrates’association should be able to support itself.

There’s the rub. Those of us who believepassionately in the aims of this Association mustthink long and hard about whether we are alsoprepared to support it from our own resources.Re-read the aims of the organisation to be foundin the inside back cover of this Journal.Promoting the independence of the judiciary;advancing education in law and theadministration of justice – what could be more

important? I have been associated with thisJournal since 1988 and believe as passionatelynow as I did then that it is fundamentallyimportant that judges and magistrates from theCommonwealth speak freely and confidently toeach other on these topics. The world is notgetting safer; the difficulties in maintaining therule of law in many countries are ever moreevident; the limits to the powers of worldorganisations such as the United Nations tomaintain world peace… the Commonwealthcontinues to provide an important forum in whichwe can explore fundamental issues of concern tous all. The topics which will be addressed by theTriennial Conference (see p.48) are vital. Takecorruption for example. I was intrigued by KeithHollis’ closing words in his address to theCommonwealth Law Conference this April:

“There is nothing new under the sun.Corruption is the HIV of good governance.It spreads and devours judicialindependence, making good governance andeconomic prosperity impossible to attain,and ultimately building the foundations oftyranny. In many Commonwealth countriesit is the most important issue facing thejudiciary. We must do all we can to slay thisbeast before it devours us and the basictruths which we all, as lawyers, believe in.”

Do you agree? It is depressing how few judgesand magistrates, even those on the Council,choose to respond to the issues we raise in theJournal, or to suggest articles to the EditorialBoard. Included with this Journal is yetanother questionnaire seeking to provideevidence for potential funders that the Journalis actually read. If you are reading thisEditorial, please also respond to thequestionnaire. If you think the Journal couldbe more efficiently distributed in yourjurisdiction, please let us know. If you canthink of new sources of financial support, let usknow. If you know candidates who shouldreplace this Editor, let us know. After 14 years,it is time to find a new enthusiastic volunteer.Indeed, recently appointed a part-time judge (aRecorder) your Editor is ever more mindful ofthe importance of the CMJA. May the Malawitriennial be a resounding success.

EDITORIAL

The Editor welcomes contributions of previously unpublished work, such as articles, reviews, essays.Contributions, ideally no more than 3,000 words, should be sent to the Editor, Commonwealth JudicialJournal, c/o CMJA, Uganda House, 58–59 Trafalgar Square, London WC2N 5DX.


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REPORT FROM THE CHAIRMAN

byDr Peter SlinnChairman of the Editorial Board

Latimer House Guidelines UpdateAs reported in Newsletter No 13, The LatimerHouse Guidelines were discussed in detail byLaw Ministers at their St Vincent meeting inNovember, 2002. It was then agreed that theGuidelines would be referred to a small groupof ministers to be convened by theCommonwealth-Secretary to ‘distil the essence’of the Guidelines.

The Ministerial Group meeting eventually tookplace at Marlborough House on Friday, 16 May.India, Singapore and South Africa wererepresented at ministerial level, Kenya by theAttorney-General and the United Kingdom by asenior official from the Lord Chancellor’sDepartment. Australia, Ghana and Jamaica wereunable to attend although Australia sent in itscomments on the draft ‘distillation’ which hadbeen prepared by the CommonwealthSecretariat. This draft was the subject of anexhaustive all-day discussion chaired by SouthAfrica and attended as observers byrepresentatives of the CLA, CPA, CMJA andCLEA. Karen Brewer represented the CMJAand I represented the CLEA. The observers werepermitted to participate in the deliberations. Atthe end of the day, the draft was referred backto the Commonwealth Secretariat to produce anamended document. If approved by LawMinisters, the Commonwealth Principles on theAccountability of and the Relationship betweenthe Three Branches of Government will goforward to Heads of Government, who nextmeet in Abuja, Nigeria, in December 2003.

The Latimer House process continues to showhow the Commonwealth professionalassociations can play a constructive role instrengthening the fundamental political valuesof the Commonwealth.

Commonwealth Law Conference,Melbourne, April, 2003The judiciary was well represented at the 13thCommonwealth Conference held in Melbournein April 2003. 1500 delegates, including 150

judges of whom 30 were Chief Justices attendedthe Conference the theme of which was“Common Law – Common Good – CommonWealth”.

Access to justice, HIV/AIDS, terrorism, humanrights and individual liberty were all on theagenda. In addition to dealing with issues oftransnational concern, the conference providedthe opportunity for lawyers to consider subjectsincluding migration law, technology, law andjournalism, business regulation, corporategovernance and indigenous rights.

Amongst the plenary speakers were Rt HonDame Sian Elias CJ New Zealand, The Hon.Justice Murray Gleeson, CJ Australia, Rt HonBeverley McLachlin, CJ Canada and Rt Honthe Lord Woolf of Barnes, LCJ (England andWales). Other CJs present included The HonErnest Sakala, (Zambia), The Hon Karl Singh(Guyana), The Hon Ariranga Pillay(Mauritius), The Hon. Derek Schofield(Gibraltar), The Hon Sir Dennis Byron,(Eastern Caribbean), The Hon Sir DavidSimmons (Barbados) and The Hon B J Odoki(Uganda). A number of working sessions weredirectly relevant to the judiciary. One sessionwas devoted to the role of the Chief Justice indifferent parts of the Commonwealth and wasaddressed by, inter alios, The Hon ErnestSakala. A session on Commonwealth FinalAppellate Courts and their perspectives on thecommon law included contributions from SirDavid Simmons and Lord Philips (Master ofthe Rolls, England and Wales). A session onJudicial Ethics was addressed by the CMJA’sDirector of Studies, The Hon Judge KeithHollis and by the Rt Hon Lord JusticeJonathan Mance, Court of Appeal, Englandand Wales.

The next Commonwealth Law Conference isscheduled to take place in the United Kingdomin 2005.


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PROFILE

The Hon. Sir David Simmons BC, KAChief Justice of Barbados

Sir David Simmons obtained his LLB in 1963from the London School of Economics andPolitical Sciences and in 1965, became the firstBarbadian to be awarded the degree of Masterof Laws from the University of London. He isa Barrister of Lincoln’s Inn.

He lectured in law at colleges in London until1970 when he returned to Barbados and joinedthe Law Chambers of Mr Henry Forde QC ashe then was. Between 1970 and 1974, Sir Davidwas a part-time lecturer in law at the Universityof the West Indies in Barbados.

He opened his own chambers in 1987 afterbeing appointed Queen’s Counsel in 1984 in theshortest time in the legal history of Barbados.

He was elected to Parliament in 1976 andserved continuously for 25 years until 27August 2001, when he retired from activepolitics. He was Attorney General twice (from1985–86 and more recently from September1994 to August 2001 and has been often calledupon to act as Prime Minister.

He was also Chairman of three statutory boards,the National Housing Corporation (1976–1979),the Caribbean Broadcasting Corporation (1979–81) and the National Sports Council (1981–85)

He has spearheaded many initiatives inreforming the justice system of Barbados. Hewas one of the chief architects for theestablishment of the Caribbean Court ofJustice as a Final Appellate Court to replace theJudicial Committee of the Privy Council and toadjudicate disputes arising under the SingleMarket and Economy of the Caribbean.

In January 2001 he was awarded the BarbadosCentennial Honour (BCH) and in November2001 was awarded the Knight of St Andrew(K.A) in recognition of his contribution topublic service and politics.

He became the 12th Chief Justice of Barbadoson 1 January 2002.

Sir David is married to Madam Justice MarieMacCormack, the first woman to be appointedas a judge of the Supreme Court of Barbadosand has two children.

Sir David was an outstanding schoolboy, athleteand cricketer. In 1970 he wrote the biographyof the West Indian cricketer Charlie Griffith(“Chucked Around”). He was the legal adviserto the West Indian Players Association from1987 to 1994 . He is an Appellate Steward ofthe Barbados Turf Club and has been asometime Barbados Correspondent to the BloodStock Breeders Review.

He is a connoisseur and avid collector ofcalypso music and he plays the trumpet !


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THE USAGES OF SOCIETY AND THE FASHIONS OFTHE TIMES (W[H]ITHER THE COMMON LAW?)

byRt. Hon Dame Sian Elias, GNZMChief Justice of New Zealand

The following Keynote address was presentedat the 13th Commonwealth Law Conferenceheld in Melbourne from 13–17 April 2003 andhas been reproduced with the kind permissionof the author and the Organising Committeefor the 13th Commonwealth Law Conference.

IntroductionIn his Introduction to English Legal History,1

Professor Baker cites the Serjeant who in 1470asserted that the common law had been inexistence since the creation of the world. Well,as legal historians such as Baker havedemonstrated, not quite. Another conceit, thatthe common law is an unchanging expression ofsturdy English common sense (“flesh of ourflesh, bone of our bone” as Lord Bingham putit),2 has also been convincingly exploded.3 Thecommon law indeed has ancient roots, but manyare not English at all. It has borrowed, adapted,travelled, and grown. It is more in debt to thedoctrine of the civilians than we often care toacknowledge.4 There is no longer, if indeed thereever was, one substantive common law.5 And weno longer pretend that the judges draw the lawfrom an eternal spring; we know that thecommon law has never stood still.

As many commentators have observed, thecommon law is not a body of law or even abody of principles so much as a method of legalargumentation. It is a method thatacknowledges continuity as well as adaptability.The nostalgia we have for the common law asan expression of the wisdom of ages (part of thecomforting “leaf-drift of history” described byHelen Waddell) is as much a source of itsstrength as its adaptability and vigour inchanging conditions. Indeed, it is perhaps anecessary condition of change through case law(the solutions arrived at in actual cases) that thedecision-makers be acutely conscious ofhistorical context. The common law methodseeks to meet the twin objectives of law that isstable but does not stand still.

Tension between these objectives of stabilityand change is nothing new. Baker quotes aneighteenth century judicial disagreement.6 In1784 Lord Mansfield CJ accepted that, “as theusages of society alter, the law must adapt itselfto the various situations of mankind”.7 LordKenyon CJ was of another mind: “I confess Ido not think that the Courts ought to changethe law so as to adapt it to the fashions of thetimes”.8 I have taken my title from thisexchange. Whether the common law willwither, or whither it will go depends upon itsfitness to respond to the usages of society whileavoiding the fashions of the times.

The method of the common lawWe tend to think of the common law as case-law,the decisions of the courts. It is true that it hasalways been in large part the product of the resultsin actual cases. And that has had a profound effecton our legal method (a matter I turn to shortly).But it is important at the outset to acknowledgethat an explanation of the common law as simplythe decisions of the courts is inadequate in itself.It ignores how the common law has developed.

Until the development of professional lawreporting in the nineteenth century, thecommon law could not properly be discernedfrom the case-law. As Baker has pointed out:9

Only blind faith could persuade anyonewho has tried to read the year books thatthe mediaeval common law was somehowderived from their contents. Trying to gleanlaw from the year books is like trying tolearn the rules of chess or cricket merely bywatching video-recorded highlights ofmatches. The reader soon senses thatcontemporaries must have knownsomething he does not, some commonunderstandings to enable them toappreciate the moves. There must havebeen a body of presuppositions and groundrules which do not appear in the booksthemselves, except in oblique glimpses.


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(The problem was not easily overcome. As lateas 1704 Holt CJ was complaining about theunreliability of these “scrambling reports”,which “will make us to appear to posterity fora parcel of blockheads”).10

The common learning applied in the mediaevalcourts of justice was developed in the Inns ofCourt. Those formidable centres of learningwere said, in a description ascribed to Erasmus,to be “the university and church militant of thecommon law”.11 Although after the Civil Warthe influence of the Inns waned and thedevelopment and exposition of the commonlaw shifted to the courts, it is important toremember that the common learning inheritedby the courts was derived in large part fromdoctrine developed by the readers and benchersof the Inns. They drew on English custom,Roman law, Ecclesiastical law, andcontemporary European as well as English legaltheory. Nor did this approach change with theswitch of authority to the courts. The extent towhich the common law of obligations (oftenthought of as the judge-made “centre” ofEnglish common law) draws on Roman law, isdemonstrated by Professor Ibbetson’sfascinating Historical Introduction to the Lawof Obligations.12 And this process of borrowingfrom wider traditions and thinking has been anon-going one:

Both the classical forms of the tort ofnegligence and of contractual liabilitydeveloped in the nineteenth century underthe influence of the models of the Naturallawyers of the seventeenth and eighteenthcenturies and their successors. Specificdoctrines of the law of contract in particularwere derived explicitly from the works ofPothier and Savigny: offer and acceptance,mistake, the requirement of an intention tocreate legal relations. All of the principalelements of the tort of negligence can befound in the writings of Pufendorf and hisfollowers, and it may well be that nineteenthcentury common lawyers consciouslyreplicated shifts in continental theory incommon law contexts. There is good reasonto believe that a similar process is at workin the modern day development of the lawof unjust enrichment. The legacies of thepast survive into modern law.

It is important therefore to acknowledge thatthe common law is not bereft of doctrine.

Although we prefer to reason from actual caseto actual case, it is against a frame of principle,which draws explicitly upon legal theory onlypart of which is home-grown or case-made.

What Sir Gerard Brennan has described as the“skeleton of principle”13 of the common law isalso the necessary background to a properunderstanding of the place of precedent in thecommon law. While the common law movementfrom case to case can be seen, as Lord Goffsuggests,14 as a process of reasoning upwardsfrom the facts (rather than as a process ofreasoning downwards from abstract principlesembodied in a code), the difference is not blackand white. Pushed too far, it suggests Tennyson’sview of the common law as a “wilderness ofsingle instances”.15 As Cardozo put it, such aview condemns the concept of law, to16

a series of isolated dooms, the generalmerged in the particular, the principledethroned and the instance exalted assupreme.

When a case by case approach was coupledfrom the mid-nineteenth century with thediscipline of accurate law-reporting andhierarchical organisation of the courts, it is notsurprising that it led at times to an emphasis onprecedent in which the duty of the common lawjudge seemed largely to be only reproductive.As Lord Reid pointed out in his celebratedspeech to the Society of Public Teachers of Lawin 1972, such emphasis “results in the drearyargument that the case is similar to A v B andC v D but is distinguishable from X v Y andIn re Z”.17 It is the way of confusion anduncertainty. It may achieve a spuriousconsistency but, unless the broad sweep ofcommon law principles is kept firmly in mind,it results in intolerable rigidity and artificial andunreal distinctions.

Lord Mansfield, in many ways the father of themodern common law, emphasised certainty andconsistency of decision-making. But he wasimpatient of mechanical application ofprecedent, insisting that its only proper use wasto ascertain the principles for application to theparticular case.18 In Jones v Randall19 heexpressed his views:

The law of England would be a strangescience if indeed it were decided uponprecedents only. Precedents served toillustrate principles and to give them a


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fixed certainty. But the law of Englandwhich is exclusive of positive law, enactedby statute, depends upon principles, andthese principles run through all the casesaccording as the particular circumstancesof each have been found to fall within theone or the other of them.

These principles are derived not only fromdecided case-law but also from what Pounddescribed as the “general body of doctrine andtradition” which is invoked in judgments and“from which we criticise them”.20 This body ofdoctrine and tradition must also be ranked aslaw because they are observed by the judge inthe judicial process. They provide yardsticksagainst which decisions are taken. And, mostimportantly, they provide the analogies bywhich the common law judge reasons. LordGoff has described the common law judicialprocess as “an educated reflex to facts”:21

It is my experience that, when a Judgeapproaches a particular case before him, hetends to have an instinctive feel for theresult in that case. This is not mere hunch;it is the fruit of an amalgam – an amalgamof his knowledge of legal principle, hisexperience as a lawyer, his understandingof the subtle restraints with which allJudges should work, his developed sense ofjustice and his innate sense of humanity,and his common-sense. It is a simple factof life that a combination of these factorsprovides experienced Judges with a stronginstinct for the appropriate legal result inany particular case. It is this intuitivefeeling which persuades appellate Judges,as much as any reasoning from precedents,whether they should simply apply aprecedent; or qualify it; or re-mould it; ordepart from it.

The power of precedent is the “power of thebeaten track”.22 No judgment is isolated fromthe existing order. But judges are not sheep.They must move from the beaten track for goodreason. In the common law method theimportance of judgments is to predict futureoutcomes. Law, as Cardozo pointed out, amatter of prediction. It is23

[t]hat body of principle and dogma whichwith a reasonable measure of probabilitymay be predicted as the basis for judgmentin pending or in future controversies.When the prediction reaches a high degree

of certainty or assurance, we speak of thelaw as settled, though, no matter how greatthe apparent settlement, the possibility oferror in the prediction is always present.When the prediction does not reach so higha standard, we speak of the law as doubtfulor uncertain. Farther down is the vanishingpoint where the law does not exist, andmust be brought into being, if at all, by anact of free creation.

. . .

We may frame our conclusions forconvenience as universal propositions. Weare to remember that in truth they areworking hypotheses . . .

The theme of the method of the common lawas the method of the “working hypothesis” isone taken up by Lord Goff24 and LordBingham.25 It describes a method that is modestand careful, avoiding wide generalisations. Itdevelops from case to case, in response to theproblems brought before the courts by litigants.It means that any rule announced by a court istentative. All the facts to which it may beapplied cannot be foreseen. Professor NeilMacCormick has argued that any adequateoverall view of law must recognise that it is “aform of institutionalised discourse or practiceor mode of argumentation”.26 It is an “arguablediscipline” in which all norms are“defeasible”.27 That does not mean thatdecisions are at large or at whim. Judges do notdecide cases in a vacuum. They have the contextof statutes, precedents, scholarly writing andshared moral values. They proceed by analogyfrom case to case. Certainty and consistency(the “beaten track”) are themselves powerfularguments and will usually prevail. As Cardozorecognised, nine-tenths or more of the cases thatcome before a court are predetermined. Thescope for change is relatively small and shouldnot be exaggerated.

But it should be recognised that the method ofthe working hypothesis is a method of change.And it is in that principle of change that thevitality of the common law is to be found. If itis to be successful, the method of the workinghypothesis requires close attention to reasonsand to the articulation of the principles which,applied directly or by analogy, underlie thedeterminations of the courts. The future of thecommon law depends upon the ability of ourlegal systems successfully to operate by this


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method. I want to consider the challenges forcommon law methodology against a number oftopics: statutes, human rights, internationalism,pluralism and diversity, and the strains themethod of the common law imposes upon thejudiciary of today.

Statutes and common lawIn my country, the common law attached from1840.28 But the circumstances of settlementmeant that we have always depended heavilyupon statute law. I expect that we share thatcharacteristic with most other former colonies.As a result, such jurisdictions may have beencomfortable about statutory incursions into andrestatements of common law, even in areas suchas contract law.29 Our legislatures have oftenhad prodigious output, in New Zealandsometimes of pioneering law-reform withoutparallel in other jurisdictions.30 That experiencemay have made us more willing to wait forlegislative correction of common law at times.31

More importantly, it led us to pay early andclose attention to the meaning and policy ofstatutes, construed in the light of their purpose.

Such attention to the contextual meaning ofstatutes may be said to be a characteristic of theNew Zealand common law method. We havelong employed purposive construction ofstatutes, at statutory direction. TheInterpretation Ordinance 1841 thus providedthat “the language of every Ordinance shall beconstrued according to its plain import, andwhere it is doubtful, according to the purposethereof”.32 This history has meant that in NewZealand we have had no difficulty in acceptingthat both statutes and common law operatewithin a single legal system and that the judgesmust make sure that both work without friction.It has been a short step from this acceptance toa willingness to work from statutory analogiesin the development of the common law,33

discarding worn-out precedents which do not fitwith legislative restatements34 or identification ofwhere the public interest lies.35

It is nearly 100 years since Roscoe Pound wroteof common law and legislation.36 He has beenfollowed by Landis, Traynor,37 Cross,38

Atiyah,39 and Calabresi.40 Early judicial leadswere given by Lord Diplock41 and LordScarman42 in the United Kingdom, and Kirby Jin Australia.43 It is no longer realistic, if ever itwas, to see statutes and common law as oil andvinegar. Statutes have refreshed stagnating pools

of common law.44 They have provided analogiesfor the development of judge-made law,particularly where the legislation providesauthoritative guide to “the usages of society”,providing the context for the development ofcommon law. If there is a principle to bediscerned from a statute or group of statutes(and sometimes it is not so easy to find one), itwill not automatically provide an answeroutside the scope of the statute. It providesrather an argument to be tested againstcompeting principles drawn from other statutesor from the common law itself. By such processthe common law method permits co-operationbetween Parliament and courts to promotecoherence in our legal systems.

Beatson quotes Chief Justice Stone’s view thatit is the role of judges to express “the idea of aunified system of judge made and statute lawwoven into a seamless web by the processes ofadjudication”.45 In this task, judges need all thehelp they can get if they are to see the whole.As Beatson points out,. “[t]he enterprise willrequire great care if we are not to lose sight ofthe wood for all the trees. But unless we do so,studying the common law will eventually be likeshining an ever brighter light on an evershrinking object”.46 A challenge for thecommon law method in what Calabresi hascalled the age of statutes is to develop anunderstanding of the reach and sense of the lawas a whole and to avoid the shoals ofillegitimacy by judicial overreaching.

Common law and legitimacyThe prevalence of legislation as a source of lawsince the nineteenth century may have obscuredthe role of judge-made common law in anumber of common law jurisdictions. CertainlyCardozo in 1924 described, even in the UnitedStates, a suspicion and hostility towards “thecreative activity of the courts” in the minds oflaymen, based on an assumption that the roleof the Judge is simply to apply statutes tofacts.47 In New Zealand our reliance on statuteshas made us more vulnerable to misconceptionsabout the nature of law. It is common for thesuggestion that judges make law to beindignantly denied, even by those who might beexpected to know better. That attitude posesparticular challenges about legitimacy for thecommon law in New Zealand and perhaps alsoin other Commonwealth jurisdictions whichshare a similar heritage.


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The imitation of significant developments of thecommon law in the United Kingdom (forexample the substantial responses tocommercial needs described by Professor Goodein his Hamlyn lectures)48 has not beencontroversial. It is not clear however that suchsweeping home-grown judicial developmentwould have been as acceptable. It may be thatour traditions will operate to circumscribe theresponsiveness of the common law of NewZealand to changing conditions, unless we cando rather better in explaining the role of thecourts in its development and in gaining publicacceptance of that role. Reasons for judgmentare, as I will suggest further below, essential forjudicial legitimacy in development of thecommon law in the age of statutes.

In many of our jurisdictions, statutes nowoccupy much of the traditional heartland of thecommon law. Much development of thecommon law now takes the form of statutoryconstruction. This shift should not beexaggerated. As Lord Goff has pointed out, incodified systems as in common law systems,“the substantive law has to develop in somedegree from case to case”. The workinghypothesis is equally applied in construingstatutes from case to case. That is particularlyso where statutes are declaratory of thecommon law, employ open-textured drafting,or state general principles for the courts toapply. The construction of such a statute is nota mechanistic exercise. It is a high-order judicialtask, which draws heavily on the methodologyof the common law.

InternationalismThe world is shrinking. If borrowing fromoutside has always been a feature of thecommon law, that trend is only likely toaccelerate. International legal regimes nowprovide the context in which much domesticlaw operates. Increasingly domestic legislationfulfils international obligations. Internationalelectronic commerce creates challenges domesticlaw cannot hope to meet, except throughinternational co-ordination. As Kenichi Ohmaeso memorably put it, “Nothing is ‘overseas’ anylonger”.49 And judicial reaction to commonproblems, despite differences in culture andlegal background, is likely to coincide. Wereason from the analogies of foreign case-lawand domestic statutes. Internationalconventions and the determinations ofinternational tribunals under them similarly

provide assistance that we should be glad toreceive.

Today it is difficult to believe that anyoneseriously doubts the value for the common lawmethod of international legal materials. Theyimpact particularly in domestic criminal, labour,commercial, and human rights law. They arelikely to become increasingly important indealing with environmental law and with thevexed problems thrown up by terrorism andarmed conflict within national boundaries aswell as across them. It is no longer true to seeinternational rules as simply binding on statesin their relations with each other. They are thebasis of rights and duties of individuals which,adopted into domestic law, are often capable ofenforcement in courts. Sir Kenneth Keith50 hasdescribed the sweep of such obligations (whichin New Zealand either give rise to or affectmore than 200 statutes),51

Their wide-ranging subject matter includeswar and peace, disarmament and arms con-trol, international trade, international fi-nance, international commercial transac-tions, international communications, inter-national spaces, the environment, humanrights, labour conditions and relations, andother areas of international economic, so-cial and cultural co-operation.

In the jurisdictions of the common law,reference to international materials is nowrelatively common place. Internationalobligations have made startling inroads intocommon law doctrines of sovereignty in theUnited Kingdom.52 In many common lawjurisdictions there are examples of the courtsapplying presumptions that legislation is to beconstrued in conformity with internationalobligations.53 Unincorporated treaties andjudicial consideration of them by internationalbodies and the domestic courts of other nationsare part of the materials routinely drawn on bycourts working within the common lawmethod. They are persuasive arguments in thesearch for reasons that convince.54

The challenges of rights for common lawmethodThe most dramatic illustration of the influenceof international material on the common law isto be seen in domestic human rights law. Sevenyears ago Lord Cooke of Thorndon, expressedthe view that although “[t]he world is movingtowards an international law of human rights”,


10

the progress would be “lengthy”.55 He wasright about the movement, but its pace has beenrapid indeed. At the Commonwealth JudicialColloquium in Bangalore in 1998, theparticipants were of the view that judges mustinterpret legislation in conformity withinternational human rights codes and mustdevelop the common law “in the light of thevalues and principles enshrined in internationalhuman rights law”.

Even before enactment of domestic legislationgiving effect to international human rightsobligations in the United Kingdom and NewZealand, the pull of the international legalcommunity in human rights was provingirresistible to the common law.56 Domesticlegislation in both countries now requires thecourts to act in conformity with human rights.It seems inescapable that the development of thecommon law will now march in step withhuman rights.57 And for those jurisdictionswhich have acceded to the Optional Protocol tothe Covenant on Civil and Political Rights, thedecisions of our courts are taken upon aninternational stage. The effect, as the experienceof the United Kingdom with the EuropeanCourts suggests,58 is likely to be salutary.Human rights have “internationalised” ourlaw.59 The habit is likely to spread.

In countries where the function of the commonlaw judge is not well-understood, human rightslitigation raises concerns about the legitimacyof judicial function. In addition, Carol Harlowhas raised the dangers of “campaigninglitigation”, which human rights litigation opensup and which may result in “colonisation of thelegal by the political process”.60 She expressesconcern about extension of standing to allowcampaigning groups to argue for particularoutcomes and the readier invocation oftechniques such as the Brandeis brief toascertain legislative facts. This may “pushcourts into areas of policymaking to which theirprocesses are inherently ill-adapted”. It issuggested such litigation may escalate thescrutiny of judicial officers for association withthe causes advocated, as Pinochet andLocabail61 illustrate. Harlow echoes T.R. Allanin expressing concern that the admission ofpressure groups or factions or special interestsmay mark a corruption of the legal process: “Toput this important point differently, too closea relationship between courts and campaigninggroups may result in a dilution of the neutrality

and objectivity of law”.62 In similar vein, LordHoffman has argued for judicial restraint inconsideration of the limits which human rightsimpose upon democratic institutions. Judgesmust recognise that they are “not appointed toset the world to rights”.63

It seems to me that criticisms such as these canbe overstated. Judges who work within thecommon law method, case by case in actualcontroversies brought to the court by litigants,cannot believe they are appointed to set theworld to rights. Brandeis briefs and relaxationof standing are techniques, sparingly used,which enable courts to be properly informedabout all sides of a dispute.64 They are nottechniques confined to human rights or publiclaw litigation. Nor are they an invitation tojudicial legislation. In appropriate cases theyovercome deficiencies in adversarial processwithout subverting it. The labels too maymislead. “Campaigning” commercialenterprises are not unknown in modernlitigation.65 And close scrutiny of theassociations judges may have with litigants is afact of life in litigation unconnected withpolitical causes.66

The application of human rights standards maybring some special challenges. In Lord Goff’swords, they invite downward reasoning fromprinciples, rather than upward reasoning fromthe facts. But, as I have already suggested, itmay be questioned whether this is a distinctionmore apparent than real since in the applicationof law to facts the common law has alwayssought organising principles. The real changebrought about by human rights standards is thepower of the organising principles they supply.This is not a revolution in method. At differentperiods in history the common law has beensimilarly galvanised by the great Charters andreforming statutes. The legislative statementsenable judicial reasoning to be more explicitthan it has perhaps been in the past inadministrative law. The Courts have in the pastbeen largely adrift in considering challenges toofficial conduct based on substantive values.They have had to seek such values in thestatute, in the international context whereapplicable,67 and in judicially-identifiedenduring community expectations. Inevitably,the result has been deference to the decision-maker and a lack of clarity and persuasivenessin judicial reasoning where, as Michael Taggarthas put it, judgments are too often


11

“characterised by assertions ofunreasonableness or unfairness, and littleelse”.68

Where legislative enactment of rights isavailable, conduct which infringes human rightsmust be “demonstrably justified” or“necessary” in a free and democratic society.This is the language of proportionality. Thethree-part approach adopted by Lord Clyde inde Freitas v Permanent Secretary of Ministry ofAgriculture, Fisheries and Housing69 andadopted by Lord Steyn in ex parte Daly70 pointsin a direction most of us are likely to travel.First, the objective of the measure taken mustbe sufficiently important to justify limiting afundamental right. Secondly, the measure mustbe reasonably connected to the objective.Thirdly, the limitation upon the right must beno more than is necessary to accomplish theobjective.

Values which the courts have identified withdifficulty (and little legitimacy) or have glossedover have now gained democratically conferredorganising principles. The courts have a registeragainst which to structure judicial reasoning.Statements of human rights in domestic lawnow provide a measure against which executiveaction can be readily tested. It would be naiveto think that they will not ultimately come toexercise a huge influence on the interpretationof all statutes and the development of thecommon law. As Cooke P remarked of the NewZealand Bill of Rights Act in R v Goodwin:71

The Bill of Rights Act is intended to bewoven into the fabric of New Zealand law.To think of it as something standing apartfrom the general body of law would be tofail to appreciate its significance.

Human rights adjustments may be complex.Where there are a range of valid outcomes, thecase will not always be easy for judicialdetermination. But where a case is properlybrought before the courts, they cannot avoidgrappling directly with the issues. As JanetMacLean has persuasively argued,72 there is noillegitimacy in this. The courts act in dialoguewith the legislature, not pulling against it.

What is developing is an elaborate systemof deference depending on the right atrisk… not all rights will be treated thesame, and some rights, such as that to befree from unreasonable search and seizure,

contain their own modifiers… over time,one would hope that a more explicitmethodology will develop – adapting someversion of proportionality doctrine,Wednesbury doctrine or a domestic versionof the margin of appreciation doctrine.Such an approach has the potential tocombine a sensitivity to democraticjudgments, as well as providing a means bywhich to make quite forceful normativestatements in a proper case. The existenceof doctrines by which courts pay deferenceto legislative judgments does not depend onwhether or not there is a striking downpower. Equally, however, the normativeforce of a court’s judgments will diminishthe more contestable the “reasonableness”component, and according to thesusceptibility of an issue to a legal analysis.

In the end, as Leventhal suggests, courts incommon law jurisdictions will proceed inpolitical thickets as they have always done,“carefully, pragmatically”.73 They will have thecomfort of standards developed by the courtsof comparable jurisdictions and byinternational bodies. But the principal answerto suggestions of judicial overreaching lies inscrupulous adherence to common law judicialmethod, through the provision of reasonswhich convince.

Reasons for judgment and judicialindependenceIt will be obvious by now that I am of the viewthat the provision of reasons for judgementwhich convince is essential to change bycommon law method. And without change,without the “principle of growth” Cardozobelieved to be part of the common law, it willwither indeed. Because our system relies soheavily on case-law, change always needs to beexplained.74 The challenge for the future of thecommon law will be to attract and retainindependent judges who observe the discipline ofcommon law method, have the imagination tosee when change is necessary, and the capacityto explain why in judgments that convince.

There are insidious pressures on common lawmethod here. In Australia, the Chief Justices ofAustralia and New South Wales have spoken ofthe challenges for the courts posed by modernpublic service management, with its emphasison transparency, accountability and objectivemeasurement. None of us are immune from


12

these pressures. And for the most part they areappropriate responses to the reality that wecannot go on increasing the number of judgesand courtrooms without depriving otherimportant social institutions of resources. Butmodern case-management, the measurement ofoutputs, and a tendency to view litigants asconsumers of services, carry potential risks tojudicial independence and impartiality. Just asthey must not trade off fair processes and justoutcomes for efficiency and expedition, theymust not erode the space judges need to reflectand convince especially in those cases where itis necessary to leave the beaten path, whilefitting the new point of departure within theexisting fabric.

Both Lord Reid and Lord Goff have emphasisedthat the common law depends upon theindependence not of the courts, but of theindividual judge. It is for that reason that bothregard the dissenting judgment, not tolerated inmost European traditions, as “liberating”.Because each judge is independent, “judgmentstell the truth – the real reasons for our decisions,expressed, where appropriate, subject to theJudge’s own qualifications, hesitations and evendoubts”.75 Again, if the common law is tomaintain its dynamism, the pressures for efficiencymust not be at the expense of the liberty of thejudge to tell the truth as he or she sees it.

The common law method is not efficient. Itneeds time. That is why it proceeds from caseto case, sometimes retreating, always cautiously.If we are too impatient of the process, we losemuch of its value. If we streamline it too much,perhaps by composite opinions, we lose theauthentic voice with its doubts and markingsfor the future traveller. Lord Reid suggested thatthe process cannot be rushed:76

The truth is that it is often not possible toreach a final solution of a difficult problemall at once. It is better to put up with someuncertainty – confusion if you like – for atime than to reach a final solutionprematurely. The problem often looksrather different the second time you dealwith it. Second thoughts are not alwaysbest but they generally are.

We should not be complacent about our abilityto attract suitable appointments to the bench.In a number of jurisdictions there is worryingresistance to recruitment from able men andwomen. And early retirements are now

common. Lagging standards of remunerationand pensions are only part of the problem. Itis no longer acceptable to many that judges areaccountable through their reasons and throughthe appeal process. Judges who make mistakeson and off the bench are subjected to complaintand calls for removal. Many of our jurisdictionsmaintain formal disciplinary processes. I do notsuggest that judges should not be criticised. But,as Felix Frankfurter put it in Bridges vCalifornia,77 the need is just as great that theybe allowed to do their duty. Maintaining theright balance, achieving the public commitmentwhich is the only sure protection for judicialindependence, is one of the challenges for oursystems.

Pluralism and diversityThe common law of England was applied toNew Zealand first as a matter of common law.78

In 1854 the legislature gave statutoryrecognition to English law as at 1840, bothstatutory and common law “so far as applicableto the circumstances of New Zealand”. It wasnot until 1988 that the Imperial LawsApplication Act attempted a list of statutes stillin force in New Zealand, beginning with theStatute of Marlborough 1267. The commonlaw of England was, rather oddly, said tocontinue to apply “so far as it was part of thelaws of New Zealand immediately before thecommencement of this Act”.79 Since thecommon law of England was modified by localcustom attaching to native societies in thecountries to which it was exported,80 what thatprovision means is unclear. The fact of thematter is that the common law has never beena seamless whole throughout the common lawworld. It was modified by the pre-existingcustom of the local populations and it hascontinued to evolve distinctly in the separatecountries to which it attached.

One of the challenges for the common law inthe years ahead may be how it copes withmodern pressures for local or social autonomyon the one hand and relocation of authority tosupranational authorities on the other. Theseare the forces that in the United Kingdom haveled both to devolution and accession to Europe.As Justice Sandra Day O’Connor identifies, theprinciple of subsidiarity applied in Europeshares common tactical roots with federalismand devolution.81 In the United Kingdom thecourts have been at the forefront of bothshifts.82


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In jurisdictions with indigenous minoritypopulations, such as mine, the aspiration ofplurality has been largely unmet. In NewZealand, preservation of Maori custom was anexplicit promise to Maori when the Treaty ofWaitangi was signed. Although the commonlaw was acknowledged to adopt local custom,and although the Privy Council sternly told thelocal courts in 1901 that it was “rather late inthe day” to hold that there was “no customarylaw of the Maoris of which the courts of lawcan take cognisance”,83 the common law ofNew Zealand largely failed to respond.84 Ourconstitutional arrangements until 1986contained provision for Maori Districts inwhich Maori could live under those customs“not repugnant to the laws of humanity”.85 Theprovision was never used and remained acuriosity. Most of us had forgotten the promiseof plurality it contained86

Claims for pluralism remain in a number ofcountries of the common law world. In othersit is accepted and acted upon. We haveforgotten in some of the old Commonwealthcountries that custom has always been animportant source of law. Sir John Salmond putit as the second most important source of law,after statutes. Its importance is reflected in thejudicial oath common to our tradition. Ourpopulations now have the example of the useof custom as law in the Pacific nations and theexample of the communities empowered in theUnited Kingdom by devolution. It is impossibleto say that in other countries our common lawlegal systems will remain immune from suchmovements. We may have to reconsider.

Diversity in the common law tradition is morereadily accepted. While at times some of us mayhave been more deferential to “the latest gospelfrom London”87 than others,88 by 1987 LordCooke felt able to express the view that even inNew Zealand our law had evolved into “a trulydistinctive body of principles and practices,reflecting a truly distinctive outlook”.89 ThePrivy Council itself gracefully said as much inInvercargill City Council v Hamlin:90

But in the present case the judges in theNew Zealand Court of Appeal wereconsciously departing from English caselaw on the ground that conditions in NewZealand are different. Were they entitled todo so? The answer must surely be Yes. Theability of the common law to adapt itself

to the differing circumstances of thecountries in which it has taken root, is nota weakness, but one of its great strengths.Were it not so, the common law would nothave flourished as it has, with all thecommon law countries learning from eachother.

The former Chief Justice of New Zealand, SirThomas Eichelbaum, has suggested that thecontinuation of appeals to the Privy Council fromNew Zealand may have resulted in some self-inhibition by the New Zealand Courts, becauseof the risk that any departure from Englishprecedent would be overruled. It is impossible toknow whether that is so. The common heritagepulls together, as the experience of those commonlaw jurisdictions which have relinquished thePrivy Council demonstrates. More often than not,when decisions in novel cases have to be measuredagainst principle, it is likely that we will agree. Theincreasing internationalisation of law also pulls ustogether. Where we go different ways, it will bebecause there are reasons to differ. Thoseexpressions of difference are themselves critical tothe continued vitality of the common law.

Beatson has expressed an opinion that theEuropean forces affecting the development ofthe common law in the United Kingdom“appear to be matched by centrifugal forces inCommonwealth common law systems, mostnoticeably and self-consciously seen in Australiaand Canada but also evident in NewZealand”.91 He concludes that the UnitedKingdom’s and this country’s links with thecommon law world seem “looser andincreasingly fragile”. I wonder whether that willprove to be so. Lord Bingham has described thecommon law as flowing now in a number ofchannels. He identifies the “diminished role” ofthe Privy Council as having given freedom tothe courts of Australia, Canada, India andelsewhere to develop principles of their own.His view is that, as a result, the common lawis strengthened by the dialogue, the process of“learning from each other” described inInvercargill City Council v Hamlin. And it maybe that, through the dialogue, the rest of us willalso gain important European insights. If so, thecommon law will only be enriched.

The novel questions we address in the future willstill be addressed and resolved by the techniquesof the common law. That point, the stability ofthe common law method, was made in his


14

Hamlyn lectures by Dean Griswold in 1965 indiscussing the common law of the United States.He said that the judges of the common law inall jurisdictions wrestle with problems:

To the end that controversies between menand men, and between men and theirgovernments, may be rightly resolved.What they do they do in the spirit of thecommon law, though the questions theyhave to decide may be ones which wouldhave startled the judges who formulatedthe common law . . . With the tools and theterms of the common law we proceed,usually on a case by case basis, in thecommon law tradition.

ConclusionI am conscious that I have said nothing at allabout the fashions of the times. I agree that thediscipline of the common law requires rathermore steadfast fidelity to principles of certaintyand consistency than following the fashions ofthe times would allow. But I have tried tosuggest that the most important principle of thecommon law is in fact a principle of change, asCardozo rightly saw. The common lawtradition, as Paul Freund identified,92 teachesthat the life of the law is response to humanneeds. It operates on the basis that, throughknowledge and understanding and immersionin the realities of life, law can work itself pure.That is hard work. Human nature and inertiaas well as respect for the cases which precedeus keep us generally on the beaten track. Butthe common law must adapt with the usages ofsociety or wither.

Endnotes1 J.H. Baker An Introduction to English Legal

History (3rd ed., 1990) 1. 2 Lord Bingham of Cornhill “The Common Law:

Past, Present and Future” (1999)Commonwealth Law Bulletin 18 at 22.

3 Lord Reid “The Judge as Law Maker” (1972)12 Journal of the Society of Public Teachers ofLaw NS 22.

4 D.B. Ibbetson Historical Introduction to theLaw of Obligations (1999).

5 Invercargill City Council v Hamlin [1994] 3NZLR 513 (CA); [1996] 1 NZLR 513 (PC).

6 Barker, above at n 1, 229. 7 Johnson v Spiller (1784) 3 Doug 371 at 373. 8 Ellah v Leigh (1794) 5 Term Rep 679 at 682. 9 J.H. Baker “Why the history of the English

Common Law has not been finished” [InauguralLecture as Downing Professor of the Laws ofEngland, 14 October 1998] (2000) 59Cambridge Law Journal 62 at 79–80.

10 Slater v May 2 LD Raym 1072, cited in C.K.Allen Law in the Making (7th ed., 1964) 219.

11 R. O’Sullivan “The Philosophy of the CommonLaw” in The Spirit of the Common Law (1965)44.

12 Ibbetson, above at n 4, 296. See also, Allen,above at n 10, 272.

13 Dietrich v R (1992) 109 ALR 385 at 403quoting himself in Mabo v Queensland (1992)107 ALR 1 at 18.

14 Lord Goff of Chievely “The Future of theCommon Law” (1997) 46 InternationalComparative and Law Quarterly 745 at 753.

15 Aylmer’s Field. 16 Benjamin N Cardozo The Growth of the Law

(1924) 54. 17 Lord Reid, above at n 3, 26. 18 Allen, above at n 10, 210. 19 [1774] Cowp. 37. 20 Benjamin Cardozo The Growth of the Law

(1924) 37 quoting Roscoe Pound. 21 Lord Goff, above at n 14, 754. 22 Cardozo, above at n 20, 62. 23 Ibid. at 43 and at 73. 24 Lord Goff, above at n 14, 753. 25 Lord Bingham, above at n 2, 19. 26 N. MacCormick “Beyond the Sovereign State”

(1993) 56 Modern Law Review 1 at 10. 27 N. MacCormick “Rhetoric and the Rule of

Law” in D. Dyzenhaus (ed.) Recrafting the Ruleof Law (1999) 163 at 176.

28 British sovereignty over New Zealand wasproclaimed on 21 May 1840 principally on thebasis of the signing of the Treaty of Waitangi on6 February 1840.

29 In New Zealand the common law principles aresubstantially restated and partly reformed in anumber of statutes enacted in the 1970s: theContractual Remedies Act 1979, theContractual Mistakes Act 1977, and later, theContracts (Privity) Act 1982.

30 Note, for examples, the development of acomprehensive “no fault” accidentcompensation scheme that began in 1972 (seethe Accident Compensation Act 1972 andsucceeding Acts); and the Law Reform(Testamentary Promises) Act 1949.

31 R v Hines [1997] 3 NZLR 529 at 539-540 perRichardson P and Keith J; Invercargill CityCouncil v Hamlin [1994] 3 NZLR 513 at 528per Cooke P.

32 Maintained in s5 of the Interpretation Act 1999. 33 See South Pacific Manufacturing Co Ltd v New

Zealand Security Consultants and InvestigationsLtd [1992] 2 NZLR 282 at 298 per Cooke P;Lord Advocate v The Scotsman Publishing Ltd[1990] AC 812; R v Uljee [1982] 1 NZLR 561;Day v Mead [1987] 2 NZLR 443; Lange vAtkinson [1997] 2 NZLR 22.

34 Fletcher Timber Ltd v Attorney-General [1984]1 NZLR 290; Commissioner of Police vOmbudsman [1988] 1 NZLR 385; Choudry vAttorney-General [1999] 3 NZLR 399.

35 Erven Warnick Besloten Vennootschap vTownsend & Sons (Hull) Ltd [1979] AC 731.

36 Roscoe Pound “Common Law and Legislation”(1907) 21 Harvard Law Review 383.


15

37 R.J. Traynor, “Statutes Revolving in CommonLaw Orbits”(1968) 17 Catholic University LawReview 401 (reprinted in The Traynor Reader(1987)).

38 Sir Rupert Cross Precedent in English Law (2nded., 1968).

39 P. Atiyah “Common Law and Statute Law´(1985)48 Modern Law Review 1 at 6.

40 G. Calabresi A Common Law for the Age ofStatutes (1982).

41 Erven Warnink Besloton Vernootschap v JTownsend & Sons (Hull) Ltd [1979] AC 731 at743.

42 Ahmad v Inner London Educational Authority[1978] QB 36; Gillick v West Norfolk andWisbeck Area Health Authority [1985] 3 WLR830.

43 Osmond v Public Service Board of New SouthWales [1984] 3 NSWLR 447 (overturned by theHigh Court in Public Service Board of NewSouth Wales v Osmond (1986) 159 CLR 656).

44 Professor Burrows (Statute Law in New Zealand(2nd ed., 1999) 324-325) refers to theatmosphere of change created by statutes andthe transferral of ideas. Landis “Statutes and theSources of Law” in Harvard Legal Essays (1934)at 213 (reprinted in (1965) 2 Harvard Journalof Legislation 7) refers to the “cross-fertilisation” of statute and common law(although laments its virtual absence at thattime).

45 (1936) 50 Harvard Law Review 4 at 12. 46 J. Beatson “Has the Common Law a Future?”

[1997] Cambridge Law Journal 291 at 313. 47 Cadozo, above at n 20, 135. 48 R. Goode Commercial Law in the Next

Millennium [The Hamlyn Lecture, 1998] 11. 49 Kenichi Ohmae The Borderless World (1991). 50 Sir Kenneth Keith “The Impact of International

Law on New Zealand Law (1998) Waikato LawReview 1.

51 Ibid. at 13. Note, the New Zealand LawCommission estimated in 1996 that one quarterof the Acts in New Zealand raised issuesconnected to international law (A New ZealandGuide to International Law and its Sources(NZLC R34)).

52 Factortame v Secretary of State for Transport(No 2) [1991] AC 603; Thoburn v SunderlandCity Council [2002] EWHC 195.

53 See for example in New Zealand Tavita vMinister of Immigration [1994] 2 NZLR 257,in New Zealand, Lange v Atkinson [1998] 3NZLR 424; Newcrest Mining (WA) Ltd v theCommonwealth (1997) 147 ALR 42, 147 perKirby J; Jumburna Coal Mine NL v VictorianMiners’ Association (1908) 6 CLR 309 at 363per O’Connor J; Minister for Immigration andEthnic Affairs v Teoh (1995) 128 ALR 353 at362 per Mason CJ and Deane J.

54 See R Higgins “The Relationship betweenInternational and Regional Human RightsNorms and Domestic Law” (1992) 18Commonwealth Law Bulletin 1268.

55 R v Barlow [1995] 14 CRNZ 9. 56 R v Home Secretary ex parte Brind [1991] 1 AC

696. Smith and Grady v. the United Kingdom

(European Court of Human Rights,REF00001276, 27/09/1999).

57 Lange v Atkinson (HC); See R v Secretary ofState for the Home Department ex parteMcQuillan [1995] 4 All ER 400 at 422 perSedley J.

58 Smith and Grady v UK. 59 See, for example R v Butcher [1992] 2 NZLR

257 at 267 where Cooke P explained judicialremedy for breach of human rights as lying notin “judicial discretion but [in] the increasinginternational recognition of basic humanrights”.

60 C. Harlow “Public Law and Popular Justice”(2002) 65 Modern Law Review 1 at 2.

61 R v Bow Street Magistrate, ex p Pinochet Ugarte(No 1) [1998] 3 WLR 1456; Lochabail vBayfield Properties [2000] 2 WLR 870.

62 Harlow, above at n 60, 13. 63 Lord Hoffman Separation of Powers (The

Comber Lecture, 2000). 64 See, for example, the calls for counsel to present

Brandeis briefs where appropriate: Sir IvorRichardson “Public Interest Litigation” (1995)3 Waikato Law Review; Ivor Richardson “TheRole of an Appellate Judge” (1981) 5 OtagoLaw Review 1.

65 As litigation about copyright, competition, andregulatory controls illustrates.

66 Man O’War Station Ltd v Auckland CityCouncil (Judgment No 1) [2002] 3 NZLR 577(PC); Locabail (UK) Ltd v Bayfield PropertiesLtd [2000] QB 451, [2000] 2 WLR 870; ClenaePty Ltd v Australia and New Zealand BankingGroup Ltd [1999] VSCA 35; Webb v R (1994)181 CLR 41; Moch v Nedtravel (Pty) Ltd 1996(3) SA 1.

67 See Tavita v Minister of Immigration. 68 M. Taggart “Tugging on Superman’s Cape:

Lessons from Experiences with the NewZealand Bill of Rights Act 1990 [1998] PublicLaw 266.

69 [1999] 1 AC 69 at 80. 70 [2001] 3 All ER 433. 71 [1993] 2 NZLR 153 at 156. 72 J. McLean “Legislative Invalidity, Human Rights

Protection and s 4 of the New Zealand Bill ofRights Act” [2001] New Zealand Law Review421 at 447.

73 H. Leventhal “The Courts and PoliticalThickets” (1977) 77 Columbia Law Review345.

74 As Ibbetson, above at n 4, points out at 299. 75 Lord Goff, above at n 14, 755. 76 Lord Reid, above at n 3, 29. 77 314 US 252, 284 (1941). 78 R v Symonds (1847) NZPCC 387. 79 English Laws Act 1854; section 1 of the English

Laws Act 1858. 80 Tijani v Secretary Southern Nigeria [1921] 2 AC

399. 81 Justice Sandra Day O’Connor “Altered States:

Federalism and Devolution at the ‘real turn’ ofthe millenium [2001] Cambridge Law Journal493.

82 R v Secretary of State for Transport; ex parteFactortame Ltd (No2) [1991] AC 603; R v


16

Secretary of State for Transport; ex parteFactortame [1990] 2 AC 85; Thoburn vSunderland City Council.

83 Nireaha Tamaki v Baker (1901) NZPCC 371. 84 Baldick v Jackson (1910) 30 NZLR 343; Public

Trustee v Loadsby (1908) 27 NZLR 801. 85 Constitution Act 1852. 86 The Maori Purposes Act 1962 is a more recent

attempt at a measure of diversity but has alsolargely been overlooked and today reads ratheroddly.

87 J. Cameron “Legal Changes over Fifty Years”(1987) 3 Canterbury Law Review 198 at 210.

88 See Erwin Griswold Law and Lawyers in theUnited States (1965).

89 Sir Robin Cooke “The New Zealand Legal Identity”(1987) 3 Canterbury Law Review 171 at 182.

90 [1996] 1 NZLR 513 at 519–520. 91 Beatson, above at n 46, 292–293. 92 P. Freund “Mr Justice Brandeis: A Centennial

Memoir” (1957) 70 Harvard Law Review 769at 792.


17

THE INTERNATIONAL ROLE OF THE JUDICIARY

byLord WoolfLord Chief Justice of England and Wales

The following Keynote address was presentedat the 13th Commonwealth Law Conferenceheld in Melbourne from 13–17 April 2003 andhas been reproduced with the kind permissionof the author and the Organising Committeefor the 13th Commonwealth Law Conference.

I am delighted to be in Melbourne attendinganother great Commonwealth Law Conference.Commonwealth Law Conferences are hugelyenjoyable occasions and that is certainly true ofthis event. The hospitality, even by Australianand Victorian standards is exceptional. If I may,I will single out for praise just one member ofthe organising committee. I do so, because hehas taken on a special role in relation to judicialcontributions. I refer of course to JusticeBernard Teague. From my personal knowledge,I am able to pay justifiable tribute to Bernardfor his indefatigable work to make theconference a success.

However, as I fear you are about to learn overthe next 45 minutes, not everything thathappens at Law Conferences is enjoyable. Weattend because we find that what we learnassists us to perform our role in our owncountries more effectively whether the role isthat of a judge, a lawyer or an academic.

For the judiciary, certainly for the Englishjudiciary, that role has been transformed duringmy judicial lifetime (which has just entered its25th year). Until the 1970s, the role had hardlychanged in over a century. A judge’s concernwas to decide cases, but little more than that.The general attitude to reform was encapsulatedin the oft-quoted remark a judge of the previouscentury: “reform, reform, do not talk to me ofreform; things are bad enough already”. Trialswere conducted almost exclusively orally andwere extremely adversarial. Rumpole was notentirely a figment of a barrister author’s vividimagination. Such advocates could be readilyidentified at the bar. One of my favourites at thetime was Sam Stamler QC – not so much aRumpole of the Bailey, but a Rumpole of the

Strand. Today oral advocacy has a lesser roleand written advocacy has become far moresignificant. However, the changes in the judicialrole upon which I want to focus today aremuch more significant.

Just as the common law has been evolving withincreasing rapidity, so has the role of thecommon law judge. The judge’s responsibilityfor delivering justice is no longer largelyconfined to presiding over a trial and acting asarbiter between the conflicting positions of theclaimant and the defendant or the prosecutionand the defence. The role of the judiciary,individually and collectively, is to be proactivein the delivery of justice. To take on newresponsibilities, so as to contribute to thequality of justice.

At the forefront of these new responsibilities isachieving access to justice for those within thejudge’s jurisdiction. But it is not on a judge’smany new domestic responsibilities that I wantto concentrate today. Rather, it is theinternational dimension of the judiciary’s newresponsibilities that I wish to stress. ChiefJustice Murray Gleeson made reference to thesenew responsibilities in his admirable article,Global influences on the Australian judiciary, inthe Australian Bar Review, when he said:

“In an open society, a nation’s legal system,and its judiciary, will always be exposed tointernational influences. Even whenunrecognised, or unacknowledged, theywill be reflected in the substantive andadjectival law applied by judges, in thestructure and status of the judiciary, and itsrelationship with the other branches ofgovernment.”

The judiciary to which I am referring here are notthe judiciary of the growing number ofinternational and super-national courts andtribunals that are being established in differentparts of the world. This, not because I do notsupport the contribution those courts and


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tribunals are making towards upholding the ruleof law. On the contrary, I recognise theircontribution is critical. These courts (for example,the long-established International Court at theHague, the European Courts of Justice and ofHuman Rights, the new International CriminalCourt and the Special Court for Sierra Leoneabout which Geoffrey Robertson spoke earlier inthe conference) deserve our strongest support. Weshould provide that support by ensuring thatinternational courts are properly resourced andare supplied with judges to serve upon them ofthe highest calibre from amongst the legalcommunities of our respective jurisdictions and,wherever practical, from amongst our ownjudiciaries.

But today, rather than members of internationalcourts and tribunals, I am referring to thejudiciary who day-by-day in each of ourjurisdictions are responsible for providingjustice to members of the public. It is mycontention that all judges in every jurisdictionare, by the way they undertake theirresponsibilities, contributing to the quality ofjustice internationally.

Today no country is cocooned from itsneighbours. Human beings do not live inhermetically-sealed containers. While we remaincitizens of our individual nations, what happensin any part of the globe can affect us all. We notonly have a global economy, we are part of aglobal society. As SARS has dramaticallydemonstrated, the health of any nation can beat risk if an infection afflicts any other nation.The same can be true of justice and theobservance of the rule of law. The process maybe slower, the rate of contagion not so high, butthe spread of infection from one legal system toanother is likely to be unstoppable unless a curefor the disease is found.

Terrorism and crime are no respecters ofnational borders. It is not countries which aresubject to the rule of law which are thebreeding ground of terrorism. It is where therule of law has broken down that terrorismtakes root. Crime thrives where lawenforcement is weakest. It is no accident thatthe citizens of countries which observe the ruleof law do not have to seek asylum.

A theme which has justifiably reverberatedthrough the halls of this building since theconference started on Monday is that theobservance of the rule of law is critical to

progress in both the under-developed anddeveloped worlds. Cherie Booth expressedadmirably my own sentiments when she saidthat the rule of law, based as it is on HR values,is the key which can unlock greater economicand ethical wealth. The problems confrontingthe different nations in the Commonwealth arefar from identical.

However, Cherie Booth was making the point(echoed today by Chris Patten) that, if realprogress is to be achieved, it is necessary toimprove the observance of the rule of law inevery part of the Commonwealth and, indeed,of the globe.

Two months ago I attended the All AfricaConference on Law, Justice and Development inAbuja, Nigeria. Kofi Annan, Secretary Generalof the United Nations and James Wolfensohn,President of the World Bank, were both due toattend. Not surprisingly, in view of what washappening in other areas of the world, they werenot able to do so, but papers were delivered ontheir behalf. Both recognised the importance ofestablishing effective justice systems in thedeveloping world. I was particularly impressedby the comments of James Wolfensohn.Amongst the things he said were:

“[What] we know is absolutely critical –absolutely critical – is that there shouldexist a legal and judicial system whichfunctions equitably, transparently andhonestly. If these forms of legal and judicialsystems do not exist in Africa, there is noway that you can have equitabledevelopment.”

And:

“Africa needs strong, well-established ruleof law regimes to enable it to trade itselfinto prosperity and out of poverty.”

Kofi Annan expressed very much the sameviews.

Many of the countries to which reference wasbeing made at the All Africa conference wereCommonwealth countries. The state of the legalsystems within those countries should be, andI believe is, very much a matter of concern tothe more prosperous and better developedmembers of the Commonwealth. But it is notonly out of self-interest that we feel outragedwhen we see the system of justice beingtraduced within another member of the


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Commonwealth. We know that the citizens ofthat country should, like our own, be protectedby a system of justice that shares the values ofour own. While in some Commonwealthjurisdictions, such as South Africa, the commonlaw has a less dominant role, what should notdiffer from one country to another is theadherence to the rule of law.

I hope it is clear from my earlier comments, thatI believe that the way in which the rule of lawis administered by a judge in one jurisdictioneither contributes to, or detracts from, theobservance of the rule of law generally. Withouttaking away from the importance of this centralthesis, I wish to turn now to the more directcontribution that is made by the judiciary ofeach of our jurisdictions. I will also mention thelegal professions within our jurisdictions, whosecontribution is equally important.

Perhaps the most obvious example of the typeof contribution to which I am referring is thatwhich the judiciary make to their ownjurisprudence by referring to the jurisprudenceof other jurisdictions when they give judgment.This is particularly true in the field of humanrights because those rights representinternational norms. One of the reasons why Ipersonally am enthusiastic about the ECHRbeing made part of our domestic law is that ithas enabled the judges in my jurisdiction to playa part which in the ordinary course of theirduties trying domestic cases had hitherto beenunavailable, namely contributing by theirdecisions to the evolving internationaljurisprudence of human rights. In the past,British judges could do this in the PrivyCouncil, but that provided limitedopportunities. Now they can join the greatmajority of judges in other jurisdictions inmaking a direct contribution.

As a member of the Privy Council, I had alimited exposure to the jurisprudence of othermembers, but nothing like that which I havenow. The new exposure of our judiciary is ofparticular importance since, until the ECHRbecame part of our domestic law, there was nocommon law jurisdiction which directly gaveeffect to the ECHR in its courts. The Republicof Ireland had its Bill of Rights, of course, andhas done an admirable job in keeping thecommon law flag flying in Europe though itscontribution, as will be appreciated, has beenthat of a close relative of the Commonwealth

rather than that of an actual member of thefamily.

Another example is provided by theCommonwealth Conference. The great majorityof those attending are domestic practitioners or,like myself, domestic judges. However, by ourdiscussions we are learning how to achievehigher standards of justice in our ownjurisdictions.

On the Sunday prior to the conference, we hada meeting of Chief Justices of common lawjurisdictions. One of my colleagues expressedsurprise that I was able to be here after havingalready spent a week at a conference in Sydney.I answered that I would not have consideredmyself to have been doing my duty if I had notbeen able to make arrangements to be here (anopinion about which, I fear, you may alreadyhave reservations). Personalities aside, I amquite satisfied that attending conferences of thisnature is part of the essential preparation of thejudiciary for their duties. I say this in relationto what they can contribute and receive.Contribute not only in the business of themeetings, but also during the social eventsbecause of the ideas which informal exchangesof views can generate. The internationalcontacts that are made can provide referencepoints for consultation and guidance for futuredevelopment.

Another opportunity for exchanging views, thebenefits of which I can vouch for personally, arethe exchanges which take place now withincreasing frequency between the judiciary oftwo or more jurisdictions. I know, for example,that my decisions have been influenced by theexchanges I have had with my Indiancolleagues. Initially, I was astounded by theproactive approach of the Indian SupremeCourt, but I soon realised that, if that Courtwas to perform its essential role in Indiansociety, it had no option but to adopt the courseit did and I congratulate it for the courage it hasshown.

I believe we have a responsibility to learn fromeach other not only in regard to substantivelaw, but also in relation to practice andprocedure. When considering proceduralreforms of our legal systems it would be afoolish reporter who did not look at theexperience overseas. I certainly did so for myreport on Access to Justice and, as you wouldexpect, I received most generous assistance


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wherever I turned – in particular, from thedifferent jurisdictions in Australia.

Another benefit that can result from judicialexchanges is an improvement in internationaljudicial co-operation. Sometimes this can beachieved by establishing internationalconventions. Such an approach is ideal ifeveryone is willing to participate and agree.Then, the judiciary’s role can be limited tomerely providing advice on what would be themost appropriate form for the convention totake. However, there can be a particular reasonfor a country not being prepared to join aconvention, even though there is a real need forpractical co-operation between twojurisdictions.

When this happens we have found that thejudiciary can themselves, through direct contact,achieve what may be necessary. In the UK wenow have a substantial Pakistani community. Inthe past there have been difficulties because ofthe lack of a convention to which Pakistan is aparty to regulate the position where a marriagebreaks up and a parent takes a child back toPakistan (or vice versa). Until recently, there wasno simple process of obtaining the return of thechild. The court procedures could be slow andineffective. Fortunately, a solution was found.The President of our Family Division made avisit to Pakistan and a delegation of Pakistanijudges made a return trip to England. Out of thisexchange, a protocol was established betweenthe two judiciaries on their own initiative. TheProtocol provided that, in the absence of specialreasons, a child would be returned to its formercountry of residence so that issues as to carecould be dealt with by the courts of that country.To ensure the smooth operation of the protocol,each country has identified a senior judge andhas agreed that these two individuals will liaiseif any difficulties arise. My informant tells methat the protocol is working well withconsiderable benefit to the children involved. Itis intended to replicate the model with othercountries that our not parties to the HagueConvention.

Another example is provided by thearrangement which exists between France andthe UK to achieve better judicial co-operationin relation both to criminal and civil matters.Each country now sends a liaison judge to theother country so as to facilitate cooperationbetween the two legal systems. This has made

a significant contribution to an improvedunderstanding between two jurisdictions, one ofwhich is of civil and the other common law. Wehave realised that, not only do we have to learnfrom other common law systems, but also fromthe civil systems as well.

I regard it as important that, where we can, weshould harmonise our legal systems, again notonly with other common law jurisdictions, butalso with civil jurisdictions. In this regard it iswithout doubt true that the European Union andthe ECHR are acting as catalysts. This is not, asis sometimes suggested, to the disadvantage ofthe links with Commonwealth and common lawjurisdictions. In fact, it enables us to bring addedvalue to our interchanges – a continental flavour.Our civil procedure is now much closer to theFrench. As I like to describe it, it is situatedsomewhere in the middle of the English Channel(au milieu de la manche).

I turn now to what is perhaps the mostimportant part of a judge’s internationalresponsibilities – making a contribution toother systems. The position, as I see it, is brieflyas follows. If I am right that the legal systemsof different jurisdictions are dependant uponeach other, then the judiciary are not onlyresponsible for promoting the quality of justicein their own jurisdiction, they are equally, so faras practical, responsible for making acontribution to the jurisprudence of otherjurisdictions.

Individual judges and lawyers have in the pastand, I hope, will continue in the future to makesignificant contributions to other jurisdictions,particularly with a view to enhancing theobservance of human rights. In this regard, I amespecially proud of the work done by theEnglish bar and solicitors to obtain justice forthose on death row in the United States. I knowthat the Australian and New Zealand judiciarygo and sit in the small jurisdictions in thePacific area which do not have the resources toprovide the quality of judges that theythemselves would wish from amongst their owncitizens. The UK is, I believe, the onlyjurisdiction providing judges prior to retirementto the Court in Hong Kong, although Australiaand New Zealand provide very distinguishedretired members of the judiciary. The SpecialCourt of Sierra Leone has amongst its judges anumber of members who were judges ofAfrican States. These examples should be


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precedents for other smaller jurisdictions tofollow. It is an approach which enables them todemonstrate that their judiciary has thenecessary quality and independence, but whichis not inconsistent with national pride – a realdisadvantage of appeals to the Privy Council.

In addition, I am sure we could do more tohelp each other by providing training. Thetraining of judges needs to be in the control ofjudges from the country concerned, but judgesfrom other jurisdictions can provide assistancewhen required. I know a great deal of valuableassistance is being provided already by and todifferent jurisdictions. I was particularlyimpressed by the contribution being made byAustralia’s Federal Court to the Indonesianjudiciary and was extremely grateful to ChiefJustice Michael Black for allowing me towitness the ‘graduation ceremony’ for themembers of the Indonesian judiciary who mostrecently completed a training course inAustralia. For the new democracies of EasternEurope, where the judicial and legal systemsare still recovering from the cold war days,there are already many similar programmes inplace.

Before coming to Melbourne I attended the 5thWorldwide Judicial Conference in Sydney. Atthat conference, the Hon Clifford Wallace, whohas worked as hard (you could not workharder) as Justice Kirby to improve thestandards of justice throughout the world,made a suggestion that I would warmlyendorse. He suggested that each developedjurisdiction should pair up with one of thejurisdictions of the emerging democracies tomentor that jurisdiction as long as this wasrequired. I believe he had very much in mindthe precedent of the relationship betweenIndonesia and the Federal Court of Australia towhich I have already referred. He wouldwelcome volunteers.

It should not be thought that the benefits ofsuch programmes are all one way or that it isonly small countries that have need ofassistance. I have had the good fortunerelatively recently to visit three largejurisdictions – much larger than my own – atparticularly opportune times. In each case, Ihave witnessed the start of a process of changeprompted by those countries realising thatadherence to the rule of law is of criticalimportance to their future development.

The first country was South Africa, which Ivisited in 1994 soon after Mandela had beenreleased. I went to Bloemfontein with threecolleagues for a conference on human rights atthe South African Court of Appeal presidedover by their Chief Justice. The conference wasbetween the judges of South Africa and thejudges of other African jurisdictions. We metfor the first time in the library of the Court –the visiting judges (most of whom were black)in their lounge suits and the white judges ofSouth Africa in their black robes. Initially thetwo groups stood apart, but then merged andstarted to talk avidly. From that meeting, Ibelieve, grew the tree which now flowers as oneof the great Commonwealth Courts, theConstitutional Court of South Africa.

The second country was China. I made twovisits about 15 years apart. The change wasdramatic, brought about, I believe, by exposureto foreign legal systems. On the first visit,although the Vice President (who was head ofthe Supreme Court) was interested in thewestern legal systems, he had no conception ofhow a legal system could operate. On thesecond visit in 2001, there was a hunger foradvice so as to develop a system of justice whichwould support China’s growing trade.

The final country was Russia. The World Bankheld a conference there last year on reforms oflegal systems. As a result of the visit, I wasconvinced that Russia was committed toadherence to the rule of law. The conferencewas due to be opened by President Putin. In theevent, he could not attend. I was one of aprivileged few flown in his private jet to meethim in Moscow at the Kremlin. I wasastonished to find that this was not a privatemeeting, but was to be broadcast on Russiantelevision. I had been told that the Presidentwould welcome a question on human rightsand the question I posed on capital punishmentcertainly received a positive response.

But to return closer to my chosen subject. A casein the UK which, I believe demonstrated adefining realisation of the importance of theinteractive responsibilities of our judiciary wasthe General Pinochet litigation. Passing over thereasons for there having to be two hearings ofthe appeal, I believe the result of the case sent astrong message as to how different jurisdictions,Spain and the UK, could require even one of themost powerful citizens of another state to return


22

home to be held to account for his possible guiltof crimes against humanity.

My Scottish colleagues have recognised the needto be innovative in order to overcomegeographical hurdles to achieve justice. I referto their response to the Lockerbie terroristincident. The decision to sit in a Scottishenclave in Holland was a remarkablyimaginative way of enabling justice to beachieved for the relatives of the victims on theflight which happened to be passing overScotland at the time the bomb exploded.

It is the fact that challenges posed by novelsituations of this nature can be overcome, thatmakes the judicial role today so rewarding.They are achievements for the jurisdictionsinvolved, but more importantly they contributeto the accumulated experience across alljurisdictions. If it has been done once, it can bedone again. These contributions result in thereach of the rule of law extending more rapidlytoday than ever before.

We must not, however, be complacent. In recentyears, there have been deeply worrying threatsto the independence of the judiciary in somejurisdictions. Commendably, in a few otherjurisdictions, and particularly in South Africa,the senior judiciary have publicly joined theprotest of the UN rapporteur, politicians andthe media. Others have, in private, providedsupport. However, it could be helpful if, inthese situations, the collective voice of, say, theChief Justices of the Commonwealth could beheard. But how could this be done. There is no

organisation of Chief Justices in existence atpresent to take on this responsibility.

After much thought, I have come to theconclusion that it is doubtful whether such anorganisation is practical or even possible. Theneed is intermittent, but when it arises it isurgent. There is a regular turnover in those whohold the office of Chief Justice. It is mostunlikely any general mandate could be givenwithout a meeting of those in office at therelevant time. Opinions could differ as thenature of the problems differ.

Certainly the desirability of finding an answer,requires this issue to be on the agenda. What Ihave said emphasises the importance of, notonly lawyers, but judges as well comingtogether at conferences such as this, the eventlast week in Sydney and the Chief Justice’smeeting on Sunday to discuss issues such asthis. As Chief Justice Murray Gleeson also saidin the article to which I referred earlier:

“Engagement between Australian judgesand their overseas counterparts, whether ofa civil law or common law background, isessential.”

I entirely agree and would adopt the samewords in relation to the British judiciary. AndI suspect the other Chief Justices present woulddo the same in relation to their judiciary. Thisis an important reason, among the manyreasons, why I am so grateful to the organisersof this conference and my Australian colleaguesfor this opportunity to become more “engaged”during my visit to Australia.


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IntroductionThe concept of ‘sustainable development’ hasbecome increasingly popular since it wasemployed and explained in the report of theWorld Commission on Environment andDevelopment (WCED).1 Essentially, it means‘development that meets the needs of thepresent without compromising the ability offuture generations to meet their own needs’.2

More specifically, it is a concept whichemphases a ‘holistic approach’ to development– an approach that considers the need forenvironmental protection at the time of makinga development decision, and does not privilegedevelopment needs over the need forenvironmental protection.3 In the words of oneauthor, the concept ‘entails national policies anddevelopment plans [and judicial decisions] thatlook beyond the welfare of the presentgeneration, by ensuring the utilisation of land,water, forest, wildlife, and air resources for theinterests of the present and succeedinggenerations’.4

Remarkably, before the idea of ‘sustainabledevelopment’ emerged, ‘development’ wasconceived narrowly as ‘what poor nationsshould do in order to become richer’,5

regardless of the environmental implications.Yet, as explained in the report of the WCED,‘environment’ is where we all live and‘development’ is ‘what we do in attempting toimprove our lot within that abode. The two areinseparable’.6 In fact, developing countriesoriginally viewed the concept of sustainabledevelopment with great suspicion andcircumspection. Essentially, it was seen as astrategy by the developed/advanced countries(from where the concept emerged) to perpetuatethe dominance of developing countries or delay

their development. As Mrs. Indira Ghandi,(former) Prime Minister of India, put it: ‘Manyof the advanced countries today have reachedtheir present affluence by their domination overother races and countries, the exploitation oftheir own masses and their natural resources.They got a head start through sheerruthlessness, undisturbed by feelings ofcompassion or by abstract theories of freedom,equality, or justice’.7

As adumbrated above, since 1987 the conceptof sustainable development has beenincreasingly employed, explicitly or implicitly,in several international instruments(declarations and treaties), including the 1992Rio Declaration on Environment andDevelopment and the 1992 Convention onBiological Diversity (CBD) as well as in nationalconstitutions (and legislation). Notably, all therelevant declarations and treaties oblige and/orurge participating States to promote sustainabledevelopment in their respective jurisdictions.Beyond this, there is a UN Commission onSustainable Development to which all States areexpected to make annual report on itsimplementation of Agenda 21 (an Action Planfor sustainable development, drawn up at the1992 Earth Summit at Rio de Janeiro, Brazil).

At the national level, there are several nationalconstitutions (and legislation) worldwideproviding for right to environment orsustainable development. And since one andhalf decade ago, particularly over the last fewyears, some of the national constitutional (andstatutory provisions) have been the subject ofjudicial determination in national courts –particularly in the developing (also called ThirdWorld) countries. The aim of this article is to

JUDICIAL CONTRIBUTION TO SUSTAINABLEDEVELOPMENT IN DEVELOPING COUNTRIES:AN OVERVIEW

byKaniye S. A. EbekuBarrister and Solicitor of the Supreme Court of Nigeria; Senior Lecturer in Law, Rivers StateUniversity of Science and Technology, Port Harcourt, Nigeria.

Developed from the author’s thesis entitled Legal Aspects of Environmental Issues and EquityConsiderations in the Exploitation of Oil in Nigeria’s Niger Delta – Submitted to Kent Law School,University of Kent at Canterbury, 2002, particularly Chapter 4.


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provide an overview of the contribution ofthese courts to the promotion and sustenanceof sustainable development in their respectivecountries by their various decisions. Before this,however, it is instructive to briefly state someof the relevant national constitutionalprovisions (including relevant provisions in thenational Constitutions of developed countriesor parts thereof, to indicate the universality ofthe practice).

I. Sustainable development and nationalconstitutional provisionsAs earlier stated, since the 1972 StockholmConference on the Human Environment anincreasing number of countries have includedbasic principles of environmental protection/sustainable development into their nationalconstitution. In fact, there are over sixtycountries across the world now withconstitutional provisions guaranteeing right toa healthy environment or sustainabledevelopment,8 including some Africancountries9 and some component States of theUnited States of America. Surely, this reflects theimportance attached to environmental issuessince the constitution of a country or part of acountry ‘constitutes the first and primary levelin its hierarchy of judicial norms.’10 In somecases such constitutional provisions aredeclaratory of the State’s duty to pursueenvironmentally sound development,sustainable use of natural resources and/or themaintenance of safe and healthful environmentfor the citizens of the State, whereas in othersthe constitution provides for the individual’sright to a clean and healthy environment andhis/her duty to protect and conserve theenvironment and natural resources.11 In a fewcases, these two approaches are combined;12

and, in any case, they all aim at one thing: i.e.sustainable development.

In the African Continent, the presentConstitutions of Mali, the Democratic Republicof Congo, and the Republic of South Africaprovide good examples. In the case of Mali,Section 15 of its 1992 constitution provides:

Every person has a right to a healthyenvironment. The protection and defence of theenvironment and the promotion of the qualityof life are a duty for all and for the State.

Similarly, Section 46 of the 1992 Constitutionof Congo provides as follows:

Every citizen shall have the right to asatisfactory and sustainable healthyenvironment, and shall have the duty to defendit. The State shall supervise the protection andthe conservation of the environment.

In the same vein, the post-ApartheidConstitution of the Republic of South Africa(which came into force on 27 April 1994)stipulates that everyone has the right: (a) tohave an environment that is not harmful to hisor her health or well-being; (b) an environmentprotected for the benefit of present and futuregenerations, through reasonable legislative andother measures that – (i) prevent pollution andecological degradation; (ii) promoteconservation; and (iii) secure ecologicallysustainable development and use of naturalresources, while promoting justifiable economicand social development.13

The same trend can also be found in theConstitutions of many Asian countries – forexample, India, Vanuatu and China. The IndianConstitution of 1949 (as amended up to 1975)contains the following provisions:

The State shall endeavour to protect andimprove the environment and to safeguard theforests and wild life of the country.

It shall be the duty of every citizen of India –…(g) to protect and improve the naturalenvironment including forests, lakes, rivers, andwild life, and to have compassion for livingcreatures…14

On its part, the 1980 Constitution of Vanuatustates that every person has the followingfundamental duties to himself and hisdescendants and to others: to protect Vanuatuand to safeguard its national wealth, resourcesand environment in the interests of the presentand future generations.15 Lastly, China’s 1982Constitution stipulates that ‘the State shallprotect and improve the living environment,and prevent and remedy pollution and otherpublic hazards’.16 Furthermore, theConstitution provides for the rational use ofnatural resources and the protection of rareanimals and plants.17

With regard to Latin American and Caribbeancountries, all constitutions enacted in thoseregions since the Stockholm Conference on thehuman environment ‘contain some importantmodern environmental protection principles’,and older constitutions have been amended to


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incorporate such principles.18 For example, the1980 constitution of Peru provides variousrights and duties with regard to theenvironment, including the rights of citizens tolive in a healthy environment which isecologically balanced and adequate for thedevelopment of life and the preservation of thecountryside and nature, citizens’ duty toconserve the environment, and the State’s dutyto prevent and control environmentalpollution.19 In the same vein, the 1980 PoliticalConstitution of the Republic of Chileguarantees all persons the right to live in anuncontaminated environment, and imposes aduty on the State to watch over the protectionof this right and the duty to preserve nature.Moreover, the State has power to make certainrestrictions on the exercise of certain rights orfreedoms where that is necessary to preserve theenvironment.20

Moving to European countries, theConstitutions of Portugal and Bulgariaexemplify the trend. In Portugal, its 1982Constitution provides that everyone shall havethe ‘right to a healthy and ecologically balancedhuman environment and the duty to defendit.’21 The Constitution further imposes a dutyon the State to protect the environment,stipulating the necessary measures to be takentowards that goal.22 In the case of Bulgaria, its1991 Constitution enjoins the State of Bulgariato ensure the protection and conservation of theenvironment, the sustenance of animals and themaintenance of their diversity, and the rationaluse of natural resources. It further guaranteesits citizens the right to a healthy and favourableenvironment and obligates them to protect theenvironment.23

In the United States, although there is noprovision for a right to environment in thenational Constitution,24 a significant number ofthe component States of the country haveincluded such a right in their respectiveconstitutions.25 A few of these will illustrate thispoint. For example, the Constitution of theState of Hawaii provides that each person hasthe ‘right to a clean and healthful environment’,as defined by laws relating to environmentalquality, including control of pollution andconservation, protection and enhancement ofnatural resources.26 Similarly, the Constitutionof Massachusetts guarantees the people of theState the right to clean air and water, freedomfrom excessive and unnecessary noise, and the

natural, scenic, historic, and aesthetic qualitiesof their environment. It further states that theprotection of the people in their right to theconservation, development and utilization ofthe agricultural, mineral, forest, water, air andother natural resources is hereby declared to bea public purpose.27 Another example is theConstitution of Pennsylvania, which guaranteesthe people of the State ‘right to clean air, purewater, and the preservation of the natural,scenic, historic and aesthetic values of theenvironment’.28

II. Sustainable development and thirdworld judiciaryTraditionally, in most, if not all countries of theworld, the constitutional role of the judiciary isthe enforcement or implementation of laws(including the national/state Constitution). Aswill be seen presently, some Third Worldcountries have exercised this role in the field ofenvironmental issues by rendering decisions thatpromote environmental protection orsustainable development. A few examples willillustrate this increasing trend.

In M.C. Mehta V. Union of India,29 theSupreme Court of India restrained a series oftanneries from disposing of effluent into theRiver Ganges on the petition of a citizen. Inmaking this order, the court relied on Article48A of the Indian Constitution (which enjoinsthe State to endeavour to protect and improvethe environment and to safeguard the wildlifeof the country) and Article 51A thereof (whichimposes a duty on every citizen to protect theenvironment). Interestingly, and verysignificantly, the court further supported itsdecision by quoting the 1972 StockholmDeclaration on Human the Environment withapproval.

In another case,30 the Supreme Court of Indiasimilarly emphasised the need for sustainabledevelopment. Linking environmental protectionto right to life, the court expressly stated:

[T]he right to life is a fundamental right[which] includes the right of enjoyment ofpollution-free water and air for fullenjoyment of life. If anything endangers orimpairs that quality of life in derogation oflaws, a citizen has the right to have recourseto Article 32 of the Constitution forremoving the pollution of water or air whichmay be detrimental to the quality of life.


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A further example of judicial contribution toimplementation of sustainable development canbe found in the decision of the PhilippinesSupreme Court in the celebrated case ofAntonio Oposa, et al V. The HonourableSecretary Fulgencio S. Factoran, Jr. andAnother31 (popularly known as the MinorsCase), where 45 children (represented by theirguardians ad litem) instituted a representativeaction on their behalf and on behalf of futuregenerations. The action was againstgovernment’s granting of Timber LicenseAgreements beyond the sustainable capacity ofthe forest. The court held that the saidagreements were contrary to the concept ofsustainable development as recognised in thenational constitutional provision guaranteeingright to a balanced and healthy environment.32

Furthermore, Colombian courts have alsopromoted the concept of sustainabledevelopment by enforcing constitutionalprovisions on right to environment in a numberof decided cases. In one case,33 for example, thecourt held that living in deforested and pollutedareas causes grave consequences to the life andhealth of indigenous peoples. In its words, the‘devastation of their forests alters their relationwith the environment and endangers their livesand culture and ethical integrity’.34 In anothercase, the court ordered the suspension of anasphalt plant operation, holding that:

[I]t is evident that there is a threat to afundamental right recognized in thenational constitution [right toenvironment]…which could be violated,causing irreparable harm to thecommunity.35

In Costa Rica, the Supreme Court of thecountry has also upheld right to environment,by ordering the closure of a dump that wasthreatening the rights to life and healthyenvironment under the national constitution,stating that ‘life is only possible in solidaritywith nature’.36

Finally, the Nigerian Court of Appeal decision inShell V. Farah37 is a good example of judicialimplementation of sustainable development.38 Inthat case, five families in K-Dere community inRivers State sued Shell for damage arising out ofthe defendant’s oil production activities in K-Dere. As recounted by the Court of Appeal,39 thecase concerned an oil blow-out that occurred inJuly 1970 from an oil-well known as Bomu well-

11 and owned and operated by Shell. The blow-out (regarded in oil industry circles as anoperational accident) lasted for several weeksbefore it was brought under control, duringwhich time crude hydrocarbon, sulphur andeffluent toxic substances were violently emittedin dense fountains. The emissions allegedlyformed a thick layer over the surface of theplaintiffs’ adjoining land, destroying farmlands,crops and economic trees and natural vegetationof the impacted areas, with the resultantdestruction of an impacted area of about 607hectares. Before the incident, the plaintiffs usedthe land for farming, and hunting. Apart fromasking for compensation, the plaintiffs alsospecifically asked for the rehabilitation of theirimpacted land by the defendant.

Interestingly, the defendant acceptedresponsibility and paid compensation to theplaintiffs for the crops and economic treesdestroyed at the time of the incident,40 but paidno compensation for the damages to plaintiffs’land which they ‘took over’, and promised torehabilitate the affected areas.41 Fourteen yearsafter the incident,42 the defendant had still notfulfilled its promise to rehabilitate the land andthe plaintiffs decided to sue. During the trial,the court was confronted with two main issues:(1) whether the plaintiffs have been paid‘adequate compensation’; and (2) whether theland has been rehabilitated.

The plaintiffs’ expert witness,43 who hadstudied the post incident impact on theplaintiffs’ land, stated that the soil samplestudied were acidic and poor in total nitrogenas a result of the oil spillage. Consequently, hetestified, a large portion of the affected land canstill not support plant growth.44 He concludedthat ‘the area cannot be deemed to have beenrehabilitated to its pre-impact conditions andcannot be so unless certain further actions aretaken.’45 Against this conclusion, another expertcalled by the defendant maintained that theland has been rehabilitated. He stated that theirstudy46 showed that in the badly affected areawhere crop performance is poor, the surface soilhad been removed as a result of erosionoccasioned by poor management. In hisopinion, ‘soils of the area are inherently poorin fertility and the badly affected area by virtueof its depressional position had all that physicalimpediment’.47 In conclusion, he stated that ‘thepoor performance of the crops in this area wasnot due to the pressure [presence] of crude


27

oil.’48 Thus, there were directly conflictingexpert evidence before the court. However,unlike an earlier case where the Supreme Courtdecided against the plaintiff in a similarsituation,49 the trial judge decided to resolve theconflicting evidence by appointing two‘independent’ experts, one each nominated bythe plaintiffs and the defendant independently.Their joint report to the court supported thefindings of the plaintiffs’ expert witness.50 Andon the strength of this, the trial judge acceptedthe evidence of the plaintiffs’ expert witness,and rejected that of the defendant’s expertwitness, which it adjudged as not representingthe true position of things. In conclusion, heheld that the land needed rehabilitation andordered accordingly.51 Remarkably, this decisionwas supported by the Court of Appeal, whichpointedly stated:

[T]he damage the respondents [plaintiffs]suffered went beyond a mere damage tocrops and economic trees, for according tothe experts called on both sides therespondents’ [plaintiffs’] arable land washeavily polluted and renderedunproductive for many years.52

It is noteworthy that this is the first (so far theonly) case in Nigeria where the court awardedcompensation to the plaintiffs-victims of oil-related environmental damage53 and at the sametime ordered the rehabilitation of damaged land.Obviously, the order for rehabilitation of thedamaged land protects the interest of futuregenerations in line with the concept of sustainabledevelopment, and represents a significant shift inthe attitude of Nigerian Judges to issues ofenvironmental protection (particularly in casesinvolving oil development).54

In summary, the foregoing judicial decisionsshow that developing countries’ judges havetaken an affirmative attitude towards protectionof the environment and the implementation ofsustainable development. More specifically, intheir role as interpreters of the constitution andall legislation they have demonstrated theirsensitivity to such concerns in their variousdecisions.55

Interestingly, there is evidence to indicate thatJudges, including those of developing countries,are not yet satisfied with their contribution tothe promotion and sustenance of the concept ofsustainable development as seen above. At therecent Earth Summit at Johannesburg, South

Africa,56 world judges presented the outcome ofa Global Judges Symposium held a week earlierin Johannesburg, South Africa, jointly hostedby the United Nations Environment Programme(UNEP) and the Chief Justice of South Africa.57

In a declaration called the JohannesburgPrinciples on the Role of Law and SustainableDevelopment, the judges expressed a ‘firmconviction’ that the framework of internationaland national laws that has evolved since theUnited Nations Conference on HumanEnvironment held in Stockholm in 1972 – theforerunner of the Johannesburg Summit –provides ‘a sound basis for addressing themajor environmental threats of the day.’58

Significantly, the Principles are envisioned as‘action plan to strengthen the development, useand enforcement of environmentally relatedlaws’. The Judges categorically recalled the‘Principles adopted in the Rio Declaration onEnvironment and Development’ and ‘affirmedadherence to these Principles which lay downthe basic principles of sustainable development’.The thrust of the declaration was admirablysummarised by Arthur Chaskalson, ChiefJustice of South Africa, thus:

Our declaration and programme of workare… a crucial development in the quest todeliver development that respects peopleand that respects the planet for current andfuture generations and for all living things.

III. ConclusionThis article has provided an overview of thecontribution of developing countries’ judges tothe promotion, sustenance and enforcement ofthe concept of sustainable development. It hasbeen seen that despite the initial suspicion ofdeveloping countries on the concept, anincreasing number of the countries, likedeveloped countries, are including right toenvironment or sustainable development intheir national constitutions. More importantly,it has been seen that developing countries’judges have made significant contribution to thesustenance and implementation of the conceptof sustainable development, through variousdecisions in which they have actively enforcedrelevant constitutional (and statutory)provisions, which otherwise may have no effect.As Klaus Toepfer (UNEP Executive Director)observed at the 2002 Johannesburg GlobalJudges Symposium (which produced theJohannesburg Principles on the Role of Lawand Sustainable Development):


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We have over 500 international andregional agreements, treaties and dealscovering everything from protection of theozone layer to conservation of the oceansand seas… Almost all, if not all, countrieshave national environmental laws too. Butunless these are complied with, unless theyare [judicially] enforced, then they are littlemore than symbols, tokens, [and] papertigers… (Emphasis added).

Perhaps more significantly, this article hasshown that despite their present contribution tothe promotion and implementation of theconcept of sustainable development as seenabove, developing countries’ judges areprepared to make further contribution in thenear future, as demonstrated by their recentcommitment to the Johannesburg Principles onthe Role of Law and Sustainable Development.

Endnotes

1 See WCED, Our Common Future, 1987. Priorto this, the concept had been used in the 1972Stockholm Declaration on the HumanEnvironment.

2 WCED, supra n. 1, 43. 3 For conflicting arguments on the utility of the

concept of sustainable development, see W.Berkerrman, ‘Sustainable Development: Is it auseful Concept?’ (1994) 3 Environmental Values191; M. Jacobs, Sustainable Development,Capital Substitution and Economic Humility: AResponse to Berkerman’ (1994) 4 Environmentalvalues 57.

4 M.T. Okorodudu-Fubara, Law ofEnvironmental Protection: Materials and Text,Ibadan, caltop Publications, 1998, 39.

5 See Gro Harlem Brundtland (Chair of theWCED) in her forward to Our Common Future,supra n. 1.

6 Ibid. 7 See Development and Environment – Report

submitted by a panel of experts convened by theSecretary-General of the U.N. Conference on theHuman Environment, June 4 – 12, 1971 (U.N.doc. GE71 – 13738, 36).

8 See Final Report prepared by Mrs. Fatma ZohraKsentini on her study of Human Rights and theEnvironment (E/CN. 4/Sub. 2/1994/9/Corr. 1)Annex III, for details. The study wascommissioned by the U.N. Sub-Commission onPrevention of Discrimination and Protection ofMinorities by its decision 1989/108 of 31August 1989.

9 No such right can be found in any constitutionalCharter of Nigeria – the most populous nationof Africa – since she became independent in1960, despite suggestions that the Nigerianenvironment and the local inhabitants of thecountry suffer serious and various environmental

problems (especially, oil-related environmentalproblems). The Nigerian constitutionalprovision referred to by Special RapporteurKsentini in her final report as an example ofenvironment protection related provision (SeeKsentini, supra n. 7, Annex III) is, at best,merely a declaration of an aspiration. In anycase, since Nigeria had incorporated the AfricanCharter on Human Rights (which provides forright to environment – articles 16 and 24) intoits domestic law (see African Charter on Humanand Peoples’ Rights (Ratification andEnforcement) Act 1983, Cap 10, Laws of theFederation of Nigeria 1990), ‘the right the cleanenvironment is now part of Nigerian law’. SeeP.D. Okonmah, ‘Right to a Clean Environment:The Case for the people of the Oil-ProducingCommunities in the Nigerian Delta’ (1997) 41Journal of African Law 43–67, at 66.

10 See P. Wilson, et al, ‘Emerging Trends inNational Environmental Legislation inDeveloping Countries’ in S. Lin, et al (eds.),UNEP’S New Way Forward: EnvironmentalLaw and Sustainable Development, Nairobi,1995, 185–226, at 191.

11 Ibid. 12 Some of the relevant constitutional provisions

are reproduced in Ksentini, supra n. 7, AnnexIII. See also E.B. Weiss, In Fairness to FutureGenerations: International Law, CommonPatrimony, and Intergenerational Equity, NewYork, 1988, Appendix B.

13 Article 24. 14 Constitution of India 1949 (as amended up to

the Constitution (52nd Amendment) Act 1975,Part 4, Art. 48A and Part 4A, Art. 51,respectively (cited in E.B Weiss, supra n. 11, 306(Appendix B).

15 Article 7(d). 16 Chapter 1, Article 9. 17 Chapter 1, Article 26. Similar constitutional

provisions are contained in article 1 of theConstitution of the Republic of Philippines.

18 Wilson, et al, supra n. 9, at 192. 19 Political Constitution of Peru, Chapter 2, Article

123. 20 Political Constitution of the Republic of Chile,

Chapter 3, Article 19(8). Similar constitutionalprovisions can be found in the Constitutions ofColombia and Costa Rica.

21 Part 1, section III. 22 Chapter II, Article 66. 23 Chapter II, Article 31. Further examples in

Europe can be found in the Constitutions ofGermany and Sweden.

24 Nevertheless, evidence suggests that the UnitedStates Government supports right to a healthyenvironment. For example, in her final report onthe study of Human Rights and the EnvironmentSpecial Rapportuer Fatma Zohra Ksentini noteda communication addressed to her by theGovernment of the United States in the courseof the study, in which the Government statedPresident Clinton’s view: ‘The U.S. considershuman rights and environmental preservation tobe two of the highest priorities of thisGovernment. On 11 February 1994, President


29

Clinton issued an Executive Order to the headsof all departments and agencies of the U.S.Government on the subject: “Federal Actions toAddress Environmental Justice in MinorityPopulations and Low-Income Populations”. Thepurpose of this Executive Order was tounderscore certain provisions of existing U.S.laws that can help ensure that all communitiesin the United States of America live in a safe andhealthful environment’. See Ksentini, supra n. 7,Annex III, Part B. Article 7(d).

25 For an informative review, see N.A.F. Popovic,Pursuing Environmental Justice withInternational Human Rights and StateConstitutions (1996) 15 Stanford EnvironmentalLaw Journal 338, at 355–364.

26 Article XI, section 9. 27 Article 49 (Amendment adopted on 7 November

1972). 28 Article 1, section 27. The language implored in

the State of Montana’s Constitution is blunt andinteresting: ‘All persons are born free and havecertain inalienable rights. They include the rightto a clean and healthful environment’ (Article II,section 3).

29 (1988) AIR 1037 SC 30 Noted in Ksentini, supra n. 7, at 108 (and

references thereto). 31 (1994) 33 I.L.M. 173. 32 Constitution of the Republic of Philippines,

1987, section 1. Significantly, the court ruledagainst the objection of the defendants,challenging the standing of the plaintiffs inbringing the action for themselves and on behalfof future generations.

33 Noted in Ksentini, supra n. 7, at 108 (andreferences thereto).

34 The court ordered the conduct of environmentaland cultural impact study by the appropriateauthorities.

35 Noted in Fatma-Zohra Ksentini, ‘HumanRights, Environment and Development’ in S.Lin, et al (eds.), UNEP’S New Way Forward:Environmental Law and SustainableDevelopment, Nairobi, 1995, 108 (citing Doc E/CN. 4/1993/7, 18–19).

36 Noted in Ksentini, supra n. 7, at 108 (andreferences thereto).

37 Shell V. Farah [1995] 3 NWLR (Pt. 382) 148. 38 This case is considered in much more detail than

the others considered here because it representsthe most recent judicial decision in the ThirdWorld that promotes sustainable development.More significantly, the decision was apparentlyinfluenced by the ideas of sustainabledevelopment (as can be found, for instance, inthe Nigerian Federal Environmental ProtectionAgency Act 1988 (see cap 131, Revised Laws ofthe Federation of Nigeria 1990), and the AfricanCharter on Human and Peoples’ Rights whichhad been incorporated into Nigerian domesticlaw since 1983 (see Cap 10, Revised Laws of theFederation of Nigeria 1990)) although there wasno reference to any constitutional provision orpost-1972 statute or treaty dealing with right toenvironment or sustainable development.

39 Note 37, at 168–9. 40 The defendant claimed that ‘in respect of

damage to crops, economic trees and structurescaused thereby it paid a total of £22,000.00 toall the individual claimants’ (Shell V. Farah[1995] 3 NWLR (Pt. 382) 148, at 170).

41 The heavily polluted area to be rehabilitated was13.245 hectares in size. For the purpose of thepromised rehabilitation, the plaintiffs vacatedthe affected areas and could neither farm, buildnor put the land into any use. See Shell V. Farah[1995] 3 NWLR (Pt. 382) 148, at 169.

42 The court, based on the special facts of the case,rejected the defendant’s contention that the casewas statute-barred. See Shell V. Farah [1995] 3NWLR (Pt. 382) 148, at 186–7.

43 Dr Edward Obiozo, a Biochemistry teacher withthe University of Port Harcourt, Nigeria, whoholds a B.Sc degree in Biochemistry and a PhDdegree in Toxicology.

44 For details of the expert evidence, See Shell V.Farah [1995] 3 NWLR (Pt. 382) 148, at 181–2.

45 Ibid, at 182. 46 A team of experts undertook the study, only one

of which gave evidence on behalf of the others. 47 Note 45, at 182. 48 Ibid, at 180–1. 49 See Seismograph Service V. Akporuovo [1974]

1 All NLR 104. 50 Note 45, at 182–3. 51 Ibid, at 184. 52 Ibid, at 176. 53 Frynas noted that the court ‘ruled that

compensation should also be paid for thesuffering of individuals as a result of the damageto the land’. See J. G. Frynas, Oil in Nigeria:Conflict and Litigation Between Oil Companiesand Village Communities, New York andLondon, Transaction Publishers, 2000, 212.

54 Oil is the mainstay of the Nigerian economy andhitherto Nigerian judges are unwilling to makeany order that might influence multi-national oilproduction companies to relocate from thecountry. See K.S.A. Ebeku, ‘Judicial Attitudes toRedress for Oil-Related Environmental Damagein Nigeria’ (2003) Review of EuropeanCommunity and International EnvironmentalLaw (forthcoming).

55 Similar observation had been made specificallyabout the Indian higher judiciary. See S.F.Puvimanasinghe, ‘Development, Environment andthe Human Dimension: Reflections on the Role ofLaw and Policy in the Third World, with particularreference to South Asia’ (2000) Sri Lanka Journalof International Law, at 44. However, it should benoted that some judicial decisions in Nigeria donot fully advance the cause of sustainabledevelopment. See K.S.A. Ebeku, supra n. 53.

56 Held 26 August – 4 September 2002. 57 The Chief Justice of Nigeria and the Chief Justices

of most African, Caribbean and Latin Americancountries, were among those in attendance.

58 See ‘Summit: Judges Fortify Environmental LawPrinciples’ (Environmental News Service, 28August 2002) – available at: http://ens-news.com/ens/aug2002/2002-08-27-01.asp.


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All of us recognise the importance of on-goingeducation training. Conferences that we attendand articles we read constantly challenge us tore-visit our own practices, to see what othersare doing and to consider what we might donext as a matter of good practice. That is theway it should be, for law is a living thing, andwhilst its development must be orderly it mustnevertheless be demonstrable.

Chief Justices in countries that make up thePacific Islands have been very far sighted.While recognising the need for on-goingtraining and education, they knew that, giventhe very stretched resources involved in theSouth Pacific, a clear structure needed to be putin place to ensure that things actually happened.

The Chief Justices here belong to a body calledthe South Pacific Judicial Conference and 3years ago that Conference decided that it wouldset up a specialist training unit. Funding wassought, particularly from the United NationsDevelopment Programme and the AsianDevelopment Bank, as well as from England,Australia and New Zealand, and a full timejudicial education programme was set up. Theprogramme operates in a rather clever way.There are 14 Pacific member countries thatbelong to the Pacific Education Programme.The Chief Justices of each country are expectedto lead in terms of where each country wantsto put its emphasis. However, as well as thatleadership, the countries concerned have aNational Education Committee and a co-ordinator who is the link between thatcommittee and the full time Pacific JudicialEducation Programme.

Countries decide what their needs are and thenask the Programme to deliver training in termsof those needs. There is a blend of usingresources from the individual countries andexpert assistance from outside. It is importantto get the balance right. Countries need to take

JUDICIAL EDUCATION IN THE PACIFIC

byJudge Peter BoashierNew Zealand Youth and Family Court Judge, Fellow Pacific Judicial Education Programme

ownership of their own issues and solutionsand not be dictated to. On the other hand thecold reality is that many countries in the Pacificcannot manage without outside support. On adaily basis the rule of law is put to the test insome of the countries here.

At present the Programme is funded solely byAustralia and New Zealand. The total budgetfor the period July 2002 – June 2004 is$1.2Million, a much appreciated butnevertheless fairly sparse financial base given thesheer amount of work that needs to be done.

To respond to the challenge of makingresources go as far as possible the Programme’spresent emphasis is to empower each Pacificcountry by promoting strong judicial leadershipand expertise for local judicial trainers so thatwork is increasingly absorbed and delivered bymembers countries.

The key to all of this will be to keep the rateof progress even. For some countries, and theSolomon Islands is an example, the challenge tothe rule of law for the judicary is enormous.Survival is at times a challenge. A very greatdegree of support is therefore needed. On theother hand, Fiji is recovering from the traumait experienced after the coup of the 19th May2000 and strong judicial leadership andcollective responsibility is once again emergingas important. Judicial education is crucial inkeeping the momentum of that process going.

A challenge for well established and resourcedjudiciaries in the Northern Hemisphere andelsewhere might be to consider how supportcould be given to what is a unique andwonderful judicial education programme.Reinforcement of, and contribution to thePacific Judicial Education Programme wouldgo a long way in helping the rule of law andgood governance to be maintained in thePacific.


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It is the duty of all magistrates to apply the lawof the land as per established law andprocedure. Yet the current magistracy comprisespeople from many different ethnic groups andreligions, each bringing with them personalinterpretations inherent within their traditionand heritage.

I recently spent some time trying to satisfy mycuriosity as to what religious guidelines therewere for Jews when administering justice.

This proved a near impossible task, as whilstthe Torah does recognise the secularappointment of judges, all laws relate toHalacha – the religious code and law thatgoverns every facet of Jewish life. The theorybeing that as this covers each person’s daily lifeand actions, if followed properly no separate‘legal’ code is required.

Nevertheless I did come across some interestinglaws and commentaries, which I would like toshare with my colleagues on the bench.

Within the ‘Halacha’ framework mentionedabove each individual is told that whenconducting any judgement on his fellow manwithin his personal life the following should beborne in mind.

• Every Jew is a judge when he decides issuesfor himself or when deciding his opinionsof others.

• Do not trust yourself until the day you die.• Judge your fellowman positively and on the

side of merit:“Do not judge your fellowman until youarrive at his place”This is a positive commandment to judgeothers in a favourable light:“With righteousness you shall judge”

• Do not rely on your first thoughts. Be verypatient and analyse the matter carefully soas not to err.

• One who rushes to decide is negligent.• When we do not know the whole truth

about others it is a mitzvah to judge themfavourably.

• The quality of judging every person

favourably is the greatest kindness one canperform for them.

• When a person does something there aremany nuances to his/her feelings, part ofhim/her is all for it, part of him/her mayresent it. These percentages vary and theirintensity is always changing.

• Always separate facts from interpretation.• An absolute prohibition against speaking

negative words about others ‘lashonhare’.

• One who deals with others undemandingly,yielding and gently will himself so bejudged.This is deemed an irrefutable spiritual lawof nature.

• You will be judged by God as you judgeothers.This law ‘middah keneged middah’ literallymeans measure for measure – the Almightywill judge us strictly or leniently as a resultof how we judged other people.

• Forgiveness – as part of religious law, didnot exist until it appeared in the Torah.

For the administrators of justice these religiousprecursors in individual life were furtherreinforced and in some cases overridden bycommentary on the role of a judge in court.

The sages accepted that God had the power todetermine exact measure for whatevertransgression required retribution butimmediately identified that the humandetermination of such issues could not possiblyavoid risk of error thus frustrating true justice.

• When a judge comes to give judgement heshould imagine that there is a swordbehind him, which will strike him if he failsto give a true judgement according to thetruth of the case.

• Jewish teaching brands the perversion ofthe course of justice as the most alarmingsign of society’s decay.

• Judges must be competent and impartialand not appointed for social and familyreasons.

THE JEWISH ETHIC OF JUSTICE

byMichael Moss, JPJustice of the Peace, England


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• The order of hearing cases would alwaysbe that of an orphan first, then a widow,then a woman, finally a man. Protection ofthe vulnerable being paramount.

• Judges must give a patient and courteoushearing.

• Fairness also means no judgement shouldbe given out to pity to the poor or out ofrespect to the standing of the rich.

• No judge is allowed to receive a gift. Youmay think this obvious, yet this basicrequirement for the absolute honestintention to accord justice to all is, even inEngland, only a relatively recentattainment. Gifts proffered by thevictorious party to the Judge were acceptedpractice in many societies.

• Do not use unjust means to secure thevictory of justice.

• The Hebrew conception of justice stressesthe equality of man and that each humanlife is sacred and of infinite worth.

• Justice is the awe-inspired respect for thepersonality of others and their inalienablerights.

• To do justly and to love mercy – the worldcould not exist if it was governed by strictjustice alone.

The Torah then expanded into ‘social’ justice oneconomical and social issues between group andgroup, class and class, the poor upon the rich,the helpless upon those who possess the meansto help.

It even goes onto the concept of ‘InternationalJustice’, which demands respect for each andevery national group and proclaims that nopeople can of right be robbed of their nationallife or territory, language or spiritual heritage.Based on these teachings, the vision of a UnitedNations was first expanded by the prophetIsiah, 3000 years ago. Quite topical in thecurrent climate.

I have just skimmed the surface of thisfascinating subject but already uncovered; theprincipals of equality before the law, the dignityof the human person, sanctity of life, individualconscience, collective conscience and theconcept of social responsibility with individualrights and community responsibilities. Love waspromoted as a foundation of justice and for thefirst time, peace as an abstract ideal.

Justice, peace, truth – together called Mishal.

To modern man this all may seem nothing new,but whilst all great concepts and discoveries ofintellect seem obvious once revealed it requiresa special genius to formulate them initially.

These Jewish concepts of law and justicethousands of years old, form the basis of civiland common jurisprudence incorporated inmany younger religions and still forming someof the main foundations of modern society.

The religious believe that God in his wisdominstilled in every human being a sense of justiceand injustice to serve as the test to which alljustice and injustice must be put.


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HISTORICAL BACKGROUND

1.1 Court Structure

Malawi became an independent state on the 6th

of July, 1964. Two years later, it became aRepublic State. The court structure in Malawisince Independence has undergone a lot ofmetamorphosis. It is somewhat important totrace it from the time the protectorate wasdeclared. In 1889, John Buchanan declaredNyasaland as a protectorate and on the 14th ofMay, 1891, Nyasaland was officially declareda protectorate. As a result of this declaration,judicial powers were removed from thenatives.

Thus through the African order – in council of1889, consular courts had no authority toadjudicate over Natives. The collectors nowDistrict commissioners (Chief Executives) weregiven the powers to preside over cases whereboth parties were natives. They did that onbehalf of the chiefs. But this did not mean thatLocal Chiefs could not hear or try cases. Therewas too much work for the ColonialAdministrators as such, chiefs continuedpresiding over cases. But they could not passdeath sentences without the sanction of theCommissioners. But there was no anyenactment which authorized the chiefs toperform this judicial function.

In these collector’s courts, justice was to beadministered according to English Law. Thecollector was however to have regard to NativeLaws and customs as far as they were notrepugnant to the spirit of English Law andMorality. This set up continued up to 1902when the British Central African Order – incouncil was formed. Here the CollectorsCourts disappeared. They were replaced byMagistrate courts.

1.2 Native Courts (1933–1962)

In 1933, the Colonialists had changed theirofficial attitude on the administration of justice

THE MALAWI LEGAL SYSTEM

byHon M.C.C. MkandawireChairperson Industrial Relations Court of Malawi

in the then Nyasaland Protectorate. TheAfrican Courts Ordinance was passed that yearwhich empowered the provincialCommissioners to issue warrants setting upNative Courts in their respective provinces asthey pleased. Only those chiefs who wereconsidered worth were issued with thewarrants. The constitution of these courts wasin accordance with the customs of the area.These courts had both Civil and Criminaljurisdiction.

They could administer Native Law. They couldadminister customs as far as it was notrepugnant to justice and morality or inconsistentwith the provisions of any written law in forcein the protectorate. The mechanism of appealsfrom these courts was very elastic. The appealfrom a sub-native authority would go to a singlebody of chiefs or native authorized by theprovincial commissioner.

A combination of Natives and chiefs wouldconstitute a Native Appeal Court. From thiscourt appeals were held by the DistrictCommissioner, then by the ProvincialCommissioner himself and ultimately to theHigh Court.

1.3 Local Courts (1962–1969)

By the year 1962, the Native Courts wererenamed Local courts. Thus an appeal from theLocal court went from the Local Appeal thento the District Appeal court and finally to theHigh court.

It will be seen from this 1962 arrangement thatthe court system was fused together whilst asthe pre 1962 system was that the executive alsoperformed judicial functions. This newarrangement completely separated the judiciaryfrom the executive. The people manning thelocal courts were laypersons and at one point,they were known as Presidents of Local Courts.Thus on independence day, Malawi had oneLegal System with the High court on top, the


34

Magistrate Courts at the bottom plus the LocalCourts

1.4 Traditional Courts (1969–1994)

In 1969, there were further changes in the courtstructure. In 1969, Parliament in Zombasuddenly passed out a Local courts AmendmentAct. This Act was necessitated because of whatis popularly know as the Chilobwe Murders.The expatriate judges in the High Court weresaid to be incompetent, therefore, it wasthought wise by the Legislature that thereshould be a system of courts in Malawi withconcurrent jurisdiction to the High courtsystem. These courts were to be presided overby indigenous Malawians. In these courts,customary Law was to be predominant. Theamendment in Parliament was very brief butdecisive. Section 5 of the Local courtsamendment Act reads as follows:-

“The President may by order published inthe Government Gazette make suchamendments to any written Law as mayappear to him be necessary or expedientfor bringing the law into conformity withthe provision of this act.”

The result of this sweeping amendment wasthe resignation of four expatriate High Courtjudges popularity referred to as “the exodusof judges.” The Regional Traditional Courtsand the National Appeal Courts wereestablished by virtue of this amendment.These two giant courts were given powersunder the Traditional Courts Act to tryserious offences like murder, treason, etc.Legal representation was not allowed in thesetwo courts. The Regional Traditional Courtswere courts of first instance only and theyhad only criminal jurisdiction. The NationalTraditional Appeal Court was purely anappellate court and heard both Civil andCriminal appeals from traditional Appealcourts as well as the Regional TraditionalCourts. The composition in both of thesecourts was as follows:-

1 Three Traditional Chiefs2 A qualified lawyer who was usually a

Senior Resident Magistrate.3 A court Chairman usually from the District

Traditional court.

The decision of the majority was the onebinding.

Thus between 1969–1994, Malawi had a dualLegal System, with a court system whichoperated parallel to each other.

The structure of this Legal System was asfollows (see chart 1 on the next page).

The fact that the Traditional Courts were underthe control of the Minister of Justice meant thatthese courts reported to the Executive Branchof Government. This therefore compromisedthe court’s independence.

1.5 Constitutional Changes in 1994

As a result of introduction of Multi-Partysystem of Government in 1994, Malawi had anew constitutional Order. This constitutionbrought drastic changes to the Malawi LegalSystem; especially in the areas of separation ofpowers, Human Rights and Court Structure.Malawi had moved away from the doctrine ofparliamentary sovereinity to constitutionalsovereinity.

In the field of Human Rights, the 1994constitution has entrenched a comprehensivechapter on Human Rights. The court structurewas also greatly redefined. The judicature(Judiciary) is a separate branch of Government.

1.6 Establishment of the Judicature

Section 9 of the constitution provides:-

“The judiciary shall have the responsibilityof interpreting, protecting and enforcingthis constitution and all laws in accordancewith this constitution in an independentand impartial manner with regard only torelevant facts and the prescription of Law.”

1.7 The Role of the Courts in Malawi

Since 1994, the court structure in Malawi is asfollows (see chart 2 on the next page).

1.8 The Malawi Supreme Court

This is the highest appellate Court of the land.It hears appeals from the High Court and suchother Courts and tribunals as an Act ofParliament may prescribe.

1.9 Composition

The Justices of the Supreme Court of Appealshall be:


35

• Administered Written and CustomaryLaw

• Legal representation not allowed in theN.T.C.A and R.T.C

• Predominantly manned by Lay Persons

NB. The courts fell under the Judiciary andreported to the Chief Justice

• Administered Written Law• Customary Law only applied by High

court• Magistrate Courts manned by both

Legally qualified and Lay PersonsNB. The courts fell under the Ministry of

Justice and reported to the Minister ofJustice.

Chart 1.

Chart 2.


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(a) The Chief Justice(b) Such number of other Justices of Appeals not

being less than three, as may be prescribed byan Act of Parliament. Currently there are fiveof whom one is a female.

1.10 Appointment

The Chief Justice shall be appointed by thePresident and confirmed by the NationalAssembly by a majority of two thirds of themembers present and voting.

All other judges shall be appointed by thePresident on recommendation of the JudicialService Commission.

1.11 Tenure of office

A person holding the office of Justice of Appealshall vacate that office on attaining the age ofsixty-five years. A person holding the office ofJustice of Appeal may be removed from officeonly for incompetence in the performance ofthe duties of his/her office or for misbehaviour.The procedure of removal is clearly stipulatedin Section 119 (3)(4) of the Constitution.

1.12 The High Court of Malawi

The High Court of Malawi is established underSection 108 of the Constitution. The High Courtshall have unlimited original jurisdiction to hearand determine any civil or criminal proceedingsunder any Law. The High court also acts as aConstitutional Court and or can review any Lawand any action or decision of the Government.Apart from the High court being a court of firstinstance, it also acts as an appellate court, alsoreviews decisions from the subordinate courts.

1.13 Composition

Judges of the High Court shall be such numberof judges, not being less than three. Currently,there are sixteen justices.

Appointment and tenure of office of a Judge ofthe High Court is exactly like that of Justice ofAppeal.

1.14 Subordinate Courts

Subordinate Courts are established underSection 110 of the Constitution. Section 110of the Constitution provides that:

110–(1) There shall be such courts, subordinateto the High Court, as may be prescribed byan Act of Parliament which shall bepresided over by professional magistratesand Lay Magistrates.

(2) There shall be an Industrial RelationsCourt, Subordinate to the High Court,which shall have original jurisdiction overlabour disputes and such other issuesrelating to employment and shall have suchcom[position as may be specified in an Actof Parliament.

(3) Parliament may make provision fortraditional or local courts presided over bylay persons or chiefs:

Provided that the jurisdiction of such courtsshall be limited exclusively to civil cases atcustomary law and such minor Common lawand statutory civil cases as prescribed by an Actof Parliament.

As of now, these traditional or local courts havenot been put in place.

There are five (5) grades of subordinate courtsin Malawi. All these are established under theCourts Act. These are:

• Courts of Resident Magistrate• Courts of Magistrate of the first grade.• Courts of Magistrate of the second grade.• Courts of Magistrate of the third grade.• Courts of Magistrate of the fourth grade.

All these are courts of record Courts ofResident Magistrate are higher than the rest.

1.15 Composition

In practice the person appointed to be ResidentMagistrates are those who qualify to be legalpractitioners, whilst as in the other grades, thepersons appointed are not qualified lawyers.But all these magistrates are appointed by theChief Justice on the recommendation of theJudicial Service Commission as per Section 111of the constitution.

1.16 Territorial Jurisdiction

As per Section 35 of the Courts Act, allMagistrate Courts have territorial jurisdictionthroughout Malawi.

1.17 Civil Jurisdiction

Original jurisdiction is credited to subordinate


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courts over all civil actions where the amountsin dispute does not exceed:

• K50,000 in the case of a court of ResidentMagistrate;

• K40,000 in the case of a court of FirstGrade Magistrate;

• K30,000 in the case of a court of SecondGrade Magistrate;

• K20,000 in the case of a court of ThirdGrade Magistrate;

• K10,000 in the case of a court of FourthGrade Magistrate.

These are however very recent amendments tothe Courts Act which were made in 2000.

The same amendment has also givenjurisdiction to Magistrate Courts overcustomary law actions.

But the courts have no jurisdiction in thefollowing matters:

• title to ownership of land except asprovided by Section 156 of the RegisteredLand Act in Cap 58:01 of the Laws ofMalawi;

• the issue of injunctions;• guardianship of custody of infants;• the validity or dissolution of marriage,

except as provided by any other writtenLaw;

• title to any right, duty of office; and• proceedings seeking any declaratory

decrees, i.e judgments which declare pre-existing rights of the litigants.

1.18 Criminal Jurisdiction

Section 58 of the courts Act provides that in theexercise of their criminal jurisdiction the powersof the courts shall be as provided by the courtsAct, the Criminal Procedure and EvidenceCode, and any other written law. In pursuanceof this, the Criminal Procedure and EvidenceCode provides in Section 13(1) (2).

13–(1) the Resident Magistrate Courts, the firstor second grade Magistrate Courts can try anyoffence under the penal code but not treason,murder or manslaughter or attempts to commitor aid or abet, or counsel, or procure thecommission of these offences.

13(2) The third grade Magistrate Courts may tryany offence which is specified in the secondschedule of the Criminal Procedure and EvidenceCode so may the fourth grade Magistrate as long

as the maximum sentence does not exceed thejurisdiction under section 14 of the CriminalProcedure and Evidence Code.

Resident Magistrate Courts and first gradeMagistrate Courts may pass any sentenceauthorized by law but cannot pass a sentenceof death or a sentence of imprisonment whichexceeds fourteen years. Second gradeMagistrate Courts may pass a sentence ofimprisonment for a term not exceeding fiveyears or a fine not exceeding K1,000 or both.Third grade Magistrate Courts may pass asentence of imprisonment for a term notexceeding twelve months or a fine notexceeding K500 or both. Finally, fourth gradeMagistrate Courts may not pass a sentence orimprisonment for a term exceeding six monthsor a fine of K250 or both.

1.19 Appeals

Appeals from the Magistrate Courts go to HighCourt. The High Court therefore supervises thework of the lower courts.

1.20 Confirmation, Reviews and Revisions

The high Court has general supervisoryjurisdiction over all subordinate courts. It may,either of its own motion, or at the instance ofany interested party; call for the record ofproceedings in a subordinate court. This canhappen at any stage of the proceedings. If asubordinate court imposes a fine exceedingK100 or any sentence of imprisonmentexceeding two years in the case of a ResidentMagistrate Court, one year in the case of a firstand second grade Magistrates courts and sixmonths in the case of a third Magistrates courtsthen the record of the case must be submittedto the High Court. The High court thenexercises its powers of review. This is alsorequired where a first offender is convicted andsentenced to imprisonment.

1.21 Inspection and Supervision

As per Section 361 of the Criminal Procedureand Evidence Code, any Resident Magistratemay call for and examine the record of criminalproceedings before the other subordinatecourts. If he/she considers that the proceedingsare illegal, or improper, or irregular, he/she mustforward the record to the High Court.


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1.22 The Industrial Relations Court

This is a new Court in the legal system ofMalawi. As per Section 110 (2) of theconstitution, the Industrial Relations Courtdeals with labour disputes and any other issuesrelated to employment. The IRC is governedby the Labour Relations Act which is Act No.16 of 1996. The Industrial Relations Court is

a specialized court. It is headed by a Chairmanwho is appointed by the Chief Justice. TheChairman sits with assessors (two at a time)who re appointed by the Minister responsiblefor labour matters nominated by employers andemployees organisations. The decision of theIndustrial Relations Court is final and appealsgo to the High Court but only on a matter ofLaw.


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COMMONWEALTH LAW REPORTS

VAN ROOYEN AND OTHERS V STATE AND OTHERSCCT 21/01

South AfricaConstitutional Court

Chaskalson CJ, Langa DCJ, Ackermann,Kriegler, Mokgoro, O’Regan, Sachs and YacoobJJ, Plessis and Skweyiya Ag JJ

11 June 2002

VR, who was convicted in the Pretoria RegionalCourt, appealed against his conviction andchallenged the legality of the proceedings on thegrounds that the court lacked the institutionalindependence required by the Constitution.Tshabalala, who was charged with murder,instituted review proceedings, contending thatthe Regional Court lacked institutionalindependence. Themalaros, who faced charges offraud, entered a plea that the court had nojurisdiction to try him because it was not anindependent court as contemplated by s 165(2) ofthe Constitution, which provided that ‘[t]hecourts are independent and subject only to theConstitution and the law, which they must applyimpartially and without fear, favour orprejudice’. The three matters were consolidatedin the High Court. The issues raised concernedthe constitutionality of provisions of theMagistrates’ Courts Act 1944, the MagistratesAct 1993, the Regulations for Judicial Officersin the Lower Courts 1993 and the ComplaintsProcedure Regulations. The High Court ruledthat various provisions of the legislation andregulations relating to the method ofappointment, promotion and disciplining ofmagistrates, and the control that the executivehad over the day-to-day functioning of thosecourts were inconsistent with the Constitution.The order came before the Constitutional Courtto be confirmed in terms of s 172(2) of theConstitution. VR and Tshabalala applied forleave to appeal against certain parts of the order.The state and the Minister of Justice appealedagainst certain parts of the order. Themalarosdied before the judgment was given.

HELD: Appeal allowed in part. Order of HighCourt set aside in part and replaced in part.Order of invalidity confirmed in part.Applications for leave to appeal dismissed.

(1) The Constitution recognised that courtswere independent and impartial and thatall courts were entitled to the same basicinstitutional protection. That did not meanthat all courts had to be treated in the sameway. The Constitution differentiatedbetween different courts and between theprocedures for the appointment of differentjudicial officers. Relevant were theparticular functions that such courtsperformed and their place in the courthierarchy. The judgments of magistrates’courts were of first instance, theirjudgments were subject to appeal andreview in the higher courts and they weresupervised in the manner in which theydischarged their functions. In that waythey were protected from interference.They did not have a supervisoryjurisdiction over the government and,unlike higher courts, had no inherentpower. Measures considered appropriateand necessary to protect the institutionalindependence of courts dealing with suchmatters were not necessarily essential toprotect the independence of courts thatdid not perform such functions. Itfollowed that, whilst particular provisionsdealing with magistrates’ courts could beexamined for consistency with theConstitution, the mere fact that they weredifferent from the provisions of theConstitution regarding the independenceof judges of higher courts was not in itselfa reason for holding them to beunconstitutional (see paras [19]–[30],below). Valente v R (1986) 24 DLR (4th)161and De Lange v Smuts NO [1999] 2LRC 598) considered.

This report has been reproduced with the kind permission of the editors of the Law Reports ofthe Commonwealth and their publishers Lexis-Nexus.


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(2) Whether provisions regarding magistratescourts were consistent with theindependence and impartialityrequirements of the Constitution, wassubject to an objective test properlycontextualised from a perception based ona balanced view of all the materialinformation. The well-informed,thoughtful and objective observer had to besensitive to the country’s complex socialrealities, in touch with its evolving patternsof constitutional development, and guidedby the Constitution, its values and thedifferentiation it made between differentlevels of courts (see para [36], below).Dicta of Le Dain J in Valente v R (1986)24 DLR (4th) 161 at 172 applied. R vGénéreux (1992) 88 DLR (4th) 110 andFindlay v United Kingdom (1997) 24EHRR 221 considered.

(3) The composition of the MagistratesCommission (MC) was not open toobjection. Although the composition of theMC had changed by amendment to theMagistrates Act, and the governing partycontrolled the appointment of most of themembers of the Commission, it could notbe said that its composition had beenchanged for the purpose of giving theexecutive and legislature control of theCommission. Change to the Commissionhad made it more broadly representative ofSouth African society as a whole. Thatwould have been understood by anobjective observer taking a balanced viewof all the relevant circumstances. Moreover,changes to its composition had brought itsmembership closer to that of the JudicialServices Commission (JSC),itsconstitutional template, which theConstitution recognised as the bodyappropriately constituted for dealing withthe appointment and impeachment ofjudges. Whilst there were some differencesbetween the two bodies, it could hardly besaid that the Constitution contemplatedthat legislation regarding the MC would bemore rigorous than for the JSC. Also, itwas established law that the appointmentof judges by the executive or by theexecutive and Parliament was notinconsistent with the requirement that thejudiciary be independent and impartial.The findings made by the High Court were

premised on the assumption that the bodywould either be, or objectively be perceivedto be, a sham. There was no basis for suchan assumption. There was no reason tobelieve that the members of the MC wouldnot discharge their duties with integrity,nor was there any reason to fear that theywould not do so and, in the event that theydid, powerful constitutional and judicialsafeguards were in place. It followed thats 3(1) of the Magistrates Act was notinconsistent with the Constitution. It alsofollowed that the MC, rights of review byhigher courts and the duty of the MC andMinister to act in accordance with theconstitutional principle of theindependence of the judiciary providedsufficient safeguards against executiveabuse. Therefore there was no basis forimpugning the procedures in s 12 of theMagistrates Act regarding magistrates’salaries, ss 13(1)(a) and (5)(a) of theMagistrates Act and reg 30 of theRegulations for Judicial Officers in theLower Courts 1993 regarding the groundson which magistrates could continue inoffice or retire early, ss 13(2), (3), and (4)regarding the removal of magistrates fromoffice, reg 16 regarding promotion and reg22 regarding transfer (see paras [38]–[74],[136]–[159], [212]–[215], [227], below).Ex p Chairperson of the ConstitutionalAssembly: In re: Certification of, theConstitution of the Republic of SouthAfrica 1996 1996 (4) SA 744 applied.Reference re Public Sector Pay ReductionAct (PEI), s 10; A-G of Canada et al,Interveners; Reference re: Independence of,Judges of Provincial Court, Prince EdwardIsland, Provincial Court Act, and PublicSector Pay Reduction Act; A-G of Canadaet al, interveners (1997) 150 DLR (4th)577 distinguished.

(4) The power in s 3(2) of the Magistrates Act,dealing with the term of office of membersof the MC, that ‘any such appointment ordesignation [could] be withdrawn by theappointing or designating authority …after consultation with the Commission ifin his, her or its opinion there [were] soundreasons for doing so’ was not an objectivetest. There was a difference between beingnominated by the executive to perform aduty which called for an independent


41

decision, and being chosen by the executiveto perform that duty in accordance with its‘wishes’. To be consistent withindependence, objective criteria had to beset for the exercise of that power by theexecutive. The appropriate remedy was inthe form of a notional or actual severance,or reading in so as to bring the law withinacceptable constitutional standards. Only ifthis was not possible, was a declaration ofcomplete invalidity of the section orsubsection to be made. It followed thats 3(2) could be saved by deleting the words‘in his, her or its opinion’. Accordingly, theorder of the High Court declaring thewhole of s 3(2) invalid would be set aside(see paras [91]–[95], below). NationalCoalition for Gay and Lesbian Equality vMinister of Home Affairs [2000] 4 LRC292 and State v Manamela (DirectorGeneral of Justice Intervening) [2000] 5LRC 65 applied.

(5) The fact that s 6A of the Magistrates Actmade provision for a complaints system,and that that complaints system wasestablished by the Complaints ProcedureRegulations, was not open to objectionsince s 180 of the Constitution providedthat ‘National legislation may provide forany matter concerning the administrationof justice … including … (b) procedures fordealing with complaints about judicialofficers…’ There was therefore no basis forthe High Court’s finding that theprovisions of s 6 and the ComplaintsProcedure Regulations were inconsistentwith the Constitution because they gave theexecutive the exclusive power to create amechanism for dealing with improperconduct by magistrates. Nationallegislation was defined in s 239 of theConstitution as including ‘subordinatelegislation made in terms of an Act ofParliament’ and the regulations passed bythe minister were subject to constitutionalcontrol. It followed that the High Courtorder, in that respect, would be set aside(see paras [96]–[101], below).

(6) The High Court erred in finding that theprocedure for appointing magistrates unders 10 of the Magistrates Act and s 9 of theMagistrates’ Courts Act was contrary tojudicial independence on the grounds that

the Constitution required strict andcomplete separation of powers between theexecutive and the judiciary. Total separationof powers was neither feasible nor requiredby the Constitution. The effect of thesections was that the minister had to consultthe MC before making an appointment, butwas not bound by its recommendation. Themere fact that the executive and thelegislature made or participated in theappointment of judges was not inconsistentwith judicial independence. Furthermore,the appointment of the MC to advise theexecutive was a check on the exercise ofexecutive power, and not a flaw in theappointment process (see paras [102]–[110],below). Dicta of Constitutional Court in Exp Chairperson of the ConstitutionalAssembly: In re: Certification of, theConstitution of the Republic of South Africa1996 1996 (4) SA 744 at [108]–[109] and[123]–[124] applied.

(7) The power in s 16(1) of the Magistrates’Act enabling the minister to makeRegulations regarding the conditions ofservice of judicial officers was notinconsistent with s 174(7) of theConstitution which provided ‘[o]therjudicial officers must be appointed in termsof an Act of Parliament which must ensurethat the appointment, promotion, transferor dismissal of, or disciplinary stepsagainst, these judicial officers take placewithout favour or prejudice’. The power ins 16(1) was a legitimate delegation ofauthority that was necessary for effectivegovernance and was consistent with theConstitution. What s 174(7) required wasthat the Act of Parliament had to ensurethat the regulation of magistrates’conditions of employment took placewithout favour or prejudice. Whilst theMagistrates Act did not contain detailedprovisions dealing with all those matters,it did, in s 4(a), make provision for the MCwhose principal object was to ensure thatthis was done and that was an effective andsuitable means of securing theconstitutional objective. The fact thatgrievances could be brought before thehigher courts and that regulations couldonly be made after the MC had maderecommendations, were subject toparliamentary control, and ultimately


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constitutional control in the higher courts,meant that, viewed objectively, s 16(1) didnot entitle the minister to impair theindependence guaranteed by theConstitution (see paras [112]–[135],below). Executive Council, Western CapeLegislature v President of the Republic ofSouth Africa 1995 (4) SA 877 applied.

(8) Viewed in the context of the functions thatmagistrates were required to perform, theprovisions of the Magistrates Act dealing withthe grounds upon which they could beremoved from office were not inconsistentwith judicial independence. The fact thatmembers of the higher judiciary had greaterprotection than members of the lowerjudiciary did not mean that the protectiongiven to the lower judiciary was inconsistentwith judicial independence. The grounds forremoval—’misconduct, continued ill-health orincapacity’—were not materially differentfrom the grounds for removal of judges inother countries and were also similar to thegrounds on which the Public Protector, theAuditor General or a member of the SouthAfrican Human Rights Commission, theCommission on Gender Equality and theElectoral Commission could be removed fromoffice. All those institutions were entitledunder the Constitution to similar protection tothat given to courts and their independencewas also guaranteed. It followed that, in thisrespect the appeal would be upheld (see paras[161]–[166], below).

(9) Since the Constitution made provision, ins 177, for a judge to be suspended on theadvice of the JSC pending its investigation,there could be no constitutional objection toa similar power being vested in theMagistrates Commission, pending aninvestigation by it into whether or not aparticular magistrate was fit to remain inoffice. The Commission would have to havereliable evidence before it to warrant suchaction and it would have to conduct itsaffairs in a manner consistent with naturaljustice. Its decision would be liable to be setaside on review by the higher courts. Thatconstituted adequate protection against anypossible abuse of this power. It followedthat s 13(3)(a) of the Magistrates Act wasnot inconsistent with judicial independence.However, it was inappropriate that

s 13(3)(b) left it to the minister to determinewhether salary would continue to be paidon the recommendation of the Commission.It was not appropriate that the minister hadthe power to depart from decisions of theCommission on that matter. That could beremedied by deleting from s 13(3)(b) thewords ‘the Minister on the recommendationof’. The power of Parliament under s 13(4)to pass a resolution recommending theremoval of a magistrate from office was alsoinconsistent with judicial independence—aparliamentary resolution was meant to actas a safeguard, not a means of avoiding theconsequences of the independentinvestigation called for in s 13(3). It followedthat the order of the High Court declaringthe whole of s 13(3)(b) invalid would be setaside, but that the words ‘the Minister onthe recommendation of’ would be deleted,and that the order of the High Court withregard to s 13(4) would be confirmed (seeparas [166]–[175], below).

(10) The vesting, by reg 26(17) of the Regulationsfor Judicial Officers in the Lower Courts1993, of a power in the minister to determinean appropriate sanction for a magistratefound guilty of misconduct was notconsistent with judicial independence. Wheresanctions were appropriate, they had to beimposed by an independent body chargedwith the investigation of the complaint — inthis case, the MC. That inconsistency couldnot be remedied by actual or notionalseverance and accordingly reg 26(17) wouldbe declared invalid (see paras [199]–[201],below).

(11)Section 14(1) of the Magistrates Act wasinconsistent with judicial independence tothe extent that it provided that judicialpowers could be conferred on magistrates‘in any specific case, by the Minister afterconsultation with the Commission’.Magistrates could have only those powersvested in them by law and it was notconsistent with institutional independenceto permit the minister to assign judicialpowers to magistrates in addition to thosethat are ordinarily vested in them. Thosewords were therefore to be deleted, as theHigh Court had correctly held. However,s 14(2) was not inconsistent with judicialindependence in giving the minister power,


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after consulting the MC, to makeregulations conferring on magistratesadministrative powers and duties ‘which donot affect the judicial independence ofmagistrates’, including regulationsempowering the minister to confer suchpowers. Ideally, magistrates were not to berequired to perform administrative dutiesunrelated to their functions as judicialofficers. To require them to do so wouldmake them answerable to the executive,which would blur the separation of powersthat existed between the executive andjudiciary. However, there were reasons whysome existing legislation made provisionfor administrative functions and duties tobe performed by magistrates. Thoseprovisions were not at present inconsistentwith the evolving process of securinginstitutional independence at all levels ofthe court system. The constitutionality ofs 14(2) had not been challenged on the basisof the question whether administrativeduties unrelated to their judicial dutiescould properly be assigned to magistrates,but only on the basis that the power tomake regulations was vested in theminister. However, if regulations madeunder s 14(2) were inconsistent withjudicial independence, they would beinvalid in terms of the subsection. Sincesuch regulations would be subject toconstitutional control, there was adequateprotection against any possible abuse ofthat power. The orders of invalidity ofs 14(2) and, consequentially, s 14(3) weretherefore set aside (see paras [228]–[234],below). Fose v Minister of Safety andSecurity [1998] 1 LRC 198, Soobramoneyv Minister of Health, KwaZulu-Natal[1998] 2 LRC 524 and South AfricanAssociation of Personal Injury Lawyers vHeath [2001] 4 LRC 99 applied.

(12)Since s 175 of the Constitution provided forthe appointment of acting judges there couldbe no constitutional objection to theappointment of acting or temporarymagistrates under ss 9(3), (4) and (5) of theMagistrates’ Courts Act. The fact that therewas no provision for that appointment to bemade after consultation by the minister withthe senior judge of the court was notsufficient to render the provisionunconstitutional. However, s 9(4) did not

require a temporary appointment to be fora fixed or determinate period and the formof agreement entered into between the stateand temporary magistrates, which statedthat an appointment to hold temporary oracting office was at the discretion of ‘thestate’, was clearly inconsistent with securityof tenure, which was an essential element ofjudicial independence. Also, the provision ins 9(4) for the appointment of a ‘competentperson’ to act ‘generally’ or ‘in a particularmatter’ in a regional or district court wasinconsistent with judicial independence sincesuch a person, not being a magistrate,would not benefit from security of tenure.The constitutional flaws in s 9(4) could onlybe resolved by redrafting. It followed thatthe order of invalidity made by the HighCourt concerning that subsection would beconfirmed. However, s 9(3) provided for theappointment of a ‘competent person’ to actduring the absence or incapacity of amagistrate or until a vacancy was filled,which were determinate periods duringwhich the acting magistrate had security oftenure. Furthermore, s 9(5) empowered theminister to fix a salary for an actingmagistrate, in consultation with the Ministerof Finance, before the appointment wasmade for a limited period only, unless theappointee was a member of the publicservice who would continue to receive thesalary ordinarily payable. Neither s 9(3) ors 9(5) impinged on judicial independenceand the orders of invalidity made by theHigh Court would be set aside (see paras[242]–[249], below).

(13)Section 12(2)(b) of the Magistrates’Courts Act, which provided that the min-ister could prohibit additional or assistantmagistrates from exercising powers or per-forming duties conferred or imposed onmagistrates, was inconsistent with judicialindependence. All magistrates, whetherappointed permanently or temporarily,had to have the powers vested in them bylaw and it was wholly inconsistent withjudicial independence to vest in the min-ister or any other person the authority toprohibit any magistrate from exercising orperforming such powers. The HighCourt’s order of invalidity of s 12(2)(b)would therefore be confirmed (see paras[250]–[251], below).


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(14)Although declarations of invalidityconcerning regulations were not subject toconfirmation by the Constitutional Courtunder s 172(2)(d) of the Constitution, in theinstant case they were incidental to thefindings of constitutional invalidity madeby the High Court that were the subject ofthe appeal. No good purpose would beserved by requiring the appeals concerningthose regulations to be separated from theappeals concerning provisions of the Acts.The regulations dealt with important issueson which it was desirable that there shouldbe certainty. In those circumstances andbecause of the compelling need to havecertainty concerning the validity ofconditions of service under whichmagistrates functioned, it was desirable todeal with all the orders made by the HighCourt (see paras [11], [12], below).

(15)There was no basis for granting to VR andTshabalala the relief that they sought. Whilethere were provisions of the Magistrates’Courts Act, the Magistrates Act and theregulations that were inconsistent withinstitutional independence, that did notmean that magistrates’ courts had to stopfunctioning, that all decisions taken bymagistrates had to be set aside as nullitiesand that persons convicted by magistrates ofcriminal offences had to be released fromjail. Neither the quashing of VR’s convictionnor the vacating of Tshabalala’s charge was‘appropriate relief’ in respect of the findings

that had been made, since the legislationviewed as a whole was consistent with thecore values of judicial independence and thefindings did not affect the capacity of theoverwhelming majority of the judicialofficers presiding in magistrates’ courts toconduct fair trials (see paras [262]–[267],below).

Per curiam. The language in which theseconclusions of the High Court are expressed isunfortunate. The findings imply that Parliamentchanged the composition of the MC to give thelegislature and executive control over the MCin order to enable the minister to manipulate itand the magistracy. Implicit in its findings isalso the unjustifiable innuendo that the personsappointed to the Commission pursuant to thisscheme would be seen to be willing to do thebidding of the minister. In a constitutionaldemocracy such as ours, in which theConstitution is the supreme law of theRepublic, substantial power has been given tothe judiciary to uphold the Constitution. Inexercising such powers, obedience to thedoctrine of the separation of powers requiresthat the judiciary, in its comments about theother arms of the state, show respect andcourtesy, in the same way that these other armsare obliged to show respect for and courtesy tothe judiciary and one another. They shouldavoid gratuitous reflections on the integrity ofone another. Regrettably the High Court in itsjudgment did not consistently fulfil thisobligation (see paras [47]–[48], below).


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BOOK REVIEWS

byMr Justice Gilles RenaudOntario Court of Justice

NAZI SABOTEURS ON TRIAL: AMilitary Tribunal & American Law

By Louis Fisher

Lawrence, KS: University Press of Kansas,2003Contents, Preface, Note on Citations,Chronology, Bibliographical Essay,Index of Cases, Subject Index, 200 pages,$29.95

Every so often, it is imperative that we as judgesbe reminded of the great dangers that threatenthe independence of the judiciary in order thatwe steel ourselves with even greater resolve toensure that no harm be done to this cardinalprinciple.

In this vein, I commend Nazi Saboteurs on TrialA Military Tribunal & American Law and itsdetailed and searching analysis of the ouster, bypresidential decree, of recourse to the civilcourts by accused foreign ‘combatants’ and theestablishment of a special military court topermit a prosecution directed by the chief lawofficer of the Nation in order that those triedbe found guilty and put to death, and of theacquiescence – if not complicity – of theSupreme Court of the United States in thistransparent effort at protecting the State duringtimes of acute peril. The factual backdrop to beevents may be stated briefly: eight Germansaboteurs having substantial links with theUnited States are dropped off by submarine attwo locations off the East Coast in 1942, butare captured prior to any acts of destruction,largely as a result of the actions of two of theirnumber who contact the authorities. What wasremarkable was the decision to withdraw theirtrials from the jurisdiction of local militaryofficials having jurisdiction at the places ofcapture and the injunction that they be triedtogether, in a Justice department building, by amilitary tribunal convened in secret. To no one’ssurprise, they were found guilty, and executed,

save for the two who had denounced theirfellow spies.

Hence, I can think of no better contemporaryillustration of the potential menace to theindependence of the judiciary than theestablishment of a parallel court system havinga particular vocation such as militarycommissions to try certain offences oroffenders, on the one hand, and the refusal ofthe regular civil courts to scrutinize closely thelegal and constitutional foundations for these‘tribunals’, on the other.

Mr. Fisher’s book makes plain that the trial ofeight Nazi saboteurs greatly undermined theintegrity of the United States Supreme Courtand its ability to act independently (and to beseen so to do) as a separate branch ofGovernment. As the events subsequent toSeptember 11 2001, have made plain, thepolitical imperatives that may animate certaindecisions said to be necessary to protect ourway of life must not be allowed to impair theability of the judiciary to evaluate criticallywhether these laws, regulations, edicts, etc., areconsonant with the applicable legislative andconstitutional schemes.

Leaving aside such weighty issues, I commendNazi Saboteurs on Trial A Military Tribunal &American Law as an example of scholarshipthat furthers our understanding of the need forprocedural safeguards for every aspect of theconstitution of an adjudicative body, leavingaside the signal need for such safeguards in theselection of the judicial officers, of theprosecutors and of the place of trial, not tospeak of the need for judicial oversight of theproceedings and the need for scrutiny by themedia of the working of our system of justice.

Further, Mr. Fisher’s book offers a great deal offundamental instruction and insight on thecourse of justice (and the fear of potentialinjustices) in the near future if special tribunalsand courts are constituted in response to the


46

terrorism that has marked the start of thiscentury. Read in conjunction with suchexcellent studies on government’s responses toterrorism as in the case of The Security ofFreedom Essays on Canada’s Anti-TerrorismBill, edited by R.J. Daniels, P. Macklem and K.Roach, [Toronto: University of Toronto Press,2002], Nazi Saboteurs on Trial provides aconcrete example of the threat to theindependence of the judiciary when judgesbegin to defer to the Executive the duty toassess in a critical fashion the legality andconstitutionality of any measures, no matter thepolitical or military justifications that might beadvanced.

Rebellion and Invasion in the Canadas,1837–1839Canadian State Trials Volume II

Edited by F. Murray Greenwood and BarryWright

Toronto: Osgoode Society, 2002

The Canadian State Trials series seeks toprovide detailed and signal instruction inrespect to the instances, regrettably quite greatin number, in which the law was the instrumentselected by the State to protect itself fromthreats, be they real or perceived. The title ofthe well received first volume, Law, Politics,and Security Measures, 1608-1837, makes plainthat no examination of the law in times ofupheaval calling for some form of securitymeasure would be complete without a reviewof the politics of the time. It is in this vein thatthe editors have assembled scholarly materialson the period of the Rebellions or, as I wastaught in school, ‘l’époque des Patriotes’. Theresult is a penetrating analysis of a period thatwas marked by tremendous legal and politicalupheaval, by the removal of judges and thesetting aside of fundamental freedoms, by thefailure to apply the traditions of the law as itwas understood by nearly all including thepoorer classes, and by a marked desire toimplement radically novel legislation poorlyunderstood by all, all of which has contributedto our contemporary political and legaldynamics to a significant degree.

The editors, the late Professor Greenwood, alawyer and historian of international reputeassociated with the University of BritishColumbia and Professor Wright, the director of

Carleton University’s Institute of Criminologyand Criminal Justice, have succeeded indrawing what amounts to the definitive factum,if anything may be said to be definitive in thefields of law or history, on the role of the lawand legal institutions in times of revolt. And thelessons they and the eleven scholars whosework grace the pages of this elegantly writtenbook are not merely of interest for what oncehappened – they are instructive today as we faceever-increasing complex and subtle issuesrespecting our fundamental freedoms ascitizens.

By way of illustration only of the scope of thecontributions found in Rebellion and Invasionin the Canadas, 1937–1839, it will beappropriate to draw attention to a few of theChapters, and only to the extent that the studyof the times serves to further our understandingof the real fears associated with military justicefor civil issues, no matter how grave. Althoughreasons of space prohibit a review of thenumerous other issues that are reviewed in athoughtful and objective fashion, it is hopedthat this limited perspective will suffice tounderline the great contribution to ourunderstanding of liberty in a constitutionalregime under a Rule of Law, not of might…

The first chapter, “Trying the Rebels:Emergency Legislation and the ColonialExecutive’s Overall Legal Strategy in the UpperCanadian Rebellion”, by Rainer Baehre, helpsus to gain a number of fundamental insightsinto the politico-legal concerns that arise whenjudicial officers involve themselves inattempting to fashion responses to threats tothe survival of the political entity. Examplesabound of judicial “interference” in theselection of the mode of trial, the rules ofprocedure, the parameters of retrospectivelegislation, and the “mixing” of law and justice,notwithstanding that in certain respects, the“ingérence” of the judges may have resulted ina greater exercise of discretion by theprosecutors and a reduction in the numbers ofthose facing execution or transportation.

“The Toronto Treason Trials, March-May1838”, is the title of Chapter 2. Authored byPaul Romney and Barry Wright, it discusses ingreat detail and with abundant reference toprimary sources and materials the special assizesconducted to try some 149 prisoners. What isrevealed is a flawed legal procedure, especially


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if compared to the treatment the accused wouldhave received in England, and a cynicalpropaganda exercise, notwithstanding thesignificant exercise of leniency. One feature thatI found remarkable was the precise attack onthe partiality of the presiding justice byjuxtaposing his jury charge as revealed by hisbenchbook and the media and other reports ofthe testimony of the participants. Of equalinterest is the pains taking reconstruction of thevoting patterns, for they were known, of themembers of the jury. All in all, the bias thatemerges ought not to be surprising in light ofthe involvement of the judiciary into the pre-trial manoeuvring and political weighing of theimportance of the trials, resulting in renderingnull most elements of due process, such as theywere.

Moving from the trials held in Toronto to thoseconvened in Hamilton and London, Chapter 3discusses “The Treason Trials of 1838 inWestern Upper Canada”. Penned by ColinRead, we are presented with an insightful studyof the haphazard and blatantly unfairprocedures that violated safeguards dating backto 1696. Foremost of interest is the respiting ofsentences to await the political will and resolveof the executive, and to measure the potentialconsequences in a period in which border raidsand incursions were still on-going andthreatened. At the end of the day, the legitimacy

of the evidence is very much in doubt, and thejudges are denounced, yet again, for appearingto have weighed political ends as well astestimony. Of course, what more might beexpected when the judges had been active in theactual defence of their cities during the worstof the crisis… Nevertheless, the study of thesetrials serves as a vehicle to remind us that pre-trial events may well be decisive in ensuring truejustice and that the blurring of roles betweenJudicial Officers and “notables” may welldoom justice, as well as defendants.

Chapter 4 is entitled “The Kingston andLondon Courts Martial”. In this essay, BarryWright draws particular light on the politicaland legal issues that characterized thegovernment’s vacillation in selecting the optionof civil as opposed to military trials. Onceagain, a system is laid bare that failed toprovide adequate legal safeguards for theaccused.

In the final analysis, leaving aside all of theinjustices that are described so ably by thecontributors, the difficulties of balancing“firmness and lenity”, both from a practical legalperspective when faced with hundreds of trials,and from the point of view that it was necessaryto rebuild a social cohesiveness after the“Troubles”, may be the lasting lesson advancedby this excellent contribution to legal history.


DON’T FORGET IT IS STILL NOT TOO LATETO REGISTER FOR THE

13th Triennial Conference,24–29 August 2003

“Human Rights: Human Needs: Seeking a Judicial Talisman”

at the

Sun ‘n’ Sand Conference Centre, Lake Malawi, MALAWI

Human Rights: Human NeedsSeeking a Judicial Talisman

The 2003 Conference aims are to consider the role of the independent judicial officer:

– in the application of human rights’ principles to economic and cultural issues– in the promotion of economic development and social stability– in the promotion of parliamentary democracy and the independence of the

judiciary.

The programme will include keynote speakers and panellists from all parts of theCommonwealth, representing all ranks of judicial officer. Among those who haveaccepted invitations to speak are: Chief Justice Chaskalson of South Africa, Chief JusticeBeverley McLaughlin of Canada, the Lord Chief Justice, Lord Woolf

The following topics will be addressed:

• Judicial Enforcement of Socio-Economic Rights: The South AfricanExperience

• The Role of An Independent Judiciary in the Promotion of EconomicDevelopment and in the Attainment of Social Expectations

• The Responsibility of the Judiciary for Delivering Justice• Judicial Ethics & The Conclusions of the Limassol Colloquium on

Combatting Corruption within the Judiciary• Judicial Protection of Environmental Rights (Co-Sponsored by the Unep)• Children and the Law• Human Rights and the Individual• Cultural and Social Influences on Human Rights Development

Further details can be obtained from the CMJA (Tel: +44 (0) 20 7976 1007/Fax: +44 (0) 20 7976 2395 Email: [email protected])

or from the website: www.cmja.org
































Signed……………………………………. Date…………………………………..

































Signed……………………………………. Date…………………………………..



COMMONWEALTH MAGISTRATES’AND JUDGES’ASSOCIATION … · Dr Booshan Domah (Mauritius ... Mr...

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