Keynote speech in the hall was from Professor, ex-judge, now UN High Commissioner Kate O’Regan of South Africa. She was good cop to the Chief Justice’s bad cop of yesterday.
A distinguished academic, former attorney working in cases to oppose land removal from black clients in apartheid days, former constitutional court judge, her talk was to analyse the changes in constitution in the republic, by way of the history of the constitution itself from the point in 1990 when FW De Klerk un-banned the ANC and other liberation organisations. There was eventual agreement to develop a new constitution by way of a transitional or interim one, which would list certain principles that would later be enshrined in the final document. The constitutional assembly decided on this, supported by huge engagement from the population – there were 1.7m submissions to it.
The founding principles included human dignity, non-racism, non-sexism, supremacy of the constitution and the rule of law, universal adult suffrage and a multi-party system of democracy, all designed to heal the divisions of the past and establish a fair and just society.
Chapter 2 is a Bill of Rights which lists and entrenches civil and political, socio-economic, and environmental rights.
Professor O’Regan then took us through the constitutional court, its makeup, powers and history. We even got slides of the building (a modern affair built on the site of a former prison that held Mandela and Gandhi), the court in session and the judges, in their distinctive green robes (one judicial wag referring to him and themselves as the Ninja Turtles), and we were shown the court’s symbol – a tree under which people sheltered. The judgment tree is a long-cherished symbol in Africa and seems very appropriate here. But she quickly got us on to the vexed subject of racial and sexual makeup of the court, as we had yesterday. The numbers are instructive, as was the revelation that a number of the potential candidates approached by the LSSA and other NGOs refused to get involved in candidacy due to the controversiality of the appointment process, thus reducing the pool even further than its already limited scale.
There are 11 judges on the CC. in 1994 there were nine men and two women, seven white and four black. In 2013 there are nine men and two women, eight black and three white.
In 1994 there were 166 judges overall, five non-whites. In 2013, it's 241, with 149 black and 92 white. There are 171 men, 70 women.
There are problems with using any kind of racial and sexual balancing or engineering. There then develops the idea or the worry that judges are acting in some kind of sectarian representation role, which they are not, but on the positive side it helps to reflect the broader community, avoids existential prejudice masquerading as common sense (all judges reading – I found that a striking and thought-provoking phrase generally) and helps to recognise and remove blind spots.
Since its inception the court has acted robustly to defend the constitution and citizens, even making decisions against serving presidents. Kate O’Regan ended her talk with an acknowledgment that not all is well, and some things are taking and will take longer than hoped to achieve. But the constitution is robust, and the court is independent. There is room for optimism.
We then broke up into streams, and I headed for the legal aid and access to justice group. The main event was a session on legal aid funding, and again it showed how around the Commonwealth there are many interpretations of legal aid, some underpinned by a legal right to it. I felt for Lucy Scott-Moncrieff who was a panel member.
Whilst the other panel members, from Malaysia, South Africa and Kenya, were able to describe legal aid provisions that are reasonably positive and robust, Lucy told the true and accurate tale of the huge change in legal aid provision and spend, as well as the efforts to shore up access to justice with law clinics, pro bono, use of students and philanthropic funding. But even so, the size even of a reduced legal aid budget in England & Wales was so huge it was almost unreal in comparison to the small budgets enjoyed by other countries attending. However, what they did get, and what she clearly described, was the change in governmental understanding of what legal aid is for. No longer is it for equality of arms for those citizens who can't afford expensive representation; it is a safety net only for those in greatest need. Hmmm.
One thing she mentioned that caught my ear was the Right First Time project. Basically if public bodies and, I guess big business and NGOs, could get their act together so they don’t make bad decisions that then have to be litigated on, then legal prevention could be more helpful than badly funded cure. I do like the sound of that.
The representative from Malaysia is a native of Borneo and told us about a moveable court project. The judges and court staff go to remote rural areas on a voluntary basis and hold the court where the people are. Legal aid is mainly urban and there is a deficit in access to justice in the country and the jungle, and this is being addressed in an innovative way.
South Africa seems to have a pretty robust legal aid regime, which is partly a private practice-funded model and partly an agency (PDSO type). The profession has been doing research and they reckon that all other things being equal, the agency model is cheaper, and assuming that quality is assured, they see no problem in rolling this out. The question of government in effect employing those defending persons prosecuted by the state didn’t seem to bother them, as they felt that the training and quality assurance would be all that is required.
It was my turn for an afternoon off, so I went with a group on a short afternoon run to Stellenbosch – what a beautiful and historic little town, with its eminent university. As a conveyancer, the progression of architectural styles and building models, as well as the town planning were most interesting. Original Dutch styles with ornate gables and ironwork were then supplanted by a more prosaic British colonial style (original thatched roofs being replaced by houses being given a second floor and a flat roof to accommodate an imposing façade), which the guide summarised as “curly – early, straighter – later”. And yes, we did taste some local wine and cheese.
The evening was the Law Society of England & Wales/Bar Council of England & Wales reception, a large affair at the Two Oceans Aquarium. This terrific venue had various rooms – and tanks of fish, including a tank full of clown fish (Finding Nemo), which adopt a clear plastic platform as their anemone and jostle for position on it, literally lying on it in their hundreds amongst each other. The main auditorium, where we were addressed by Lucy S-M, and Maura McGowan, chair of the BCEW, had one of its walls made from the glass side (gigantically reinforced, I presume) of a huge aquarium containing large predators including two sharks, some manta rays, and all sorts of other menacing looking fish, some in shoals, some drifting along alone. One of the sharks tapped the window and waved in recognition at Des Hudson. The other striking thing about the auditorium was that it was a pit-type low stage surrounded by three banks of sitting/standing room for attendees in a very vertical pitch. The lighting was gloomy, punctuated by sharp white lights on the stage. It reminded me of nothing more than the scene in Star Trek: The Undiscovered Country when Kirk and Spock are put on trial by the Klingons.
See you tomorrow.Austin