Special Hearings — Legal Hearings — 1997-10-27

MR SIMPSON: As far as, if I may with your permission as far as leaving early is concerned we understand that only too well. I will be very brief because Vinard has to catch a plane as well. So please excuse him if he gets up?
 If I may our concern here is really to raise just a few particular issues. Our draft submission as I've mentioned will be submitted. Our submission will be made in writing. It's based on extensive research over a two year period particularly in the processing of the IDAF archive - International Defence and (...indistinct) archives. As well as through consultation with a full spectrum of legal and human rights non-governmental organisations and interviews with a fairly wide range of legal practitioners. It canvases a number of the issues which I believe have been considered by the commission over the last few days. Including some of the juris prudential arguments judicial activism versus positivism, a critical look at some of the issues around the failure in our opinion to exercise effective judicial discretion. Especially in respect of inquests and cases involving torture and confessions based on torture. Failure to reply, refer to or comply with international human rights norms and standards and a range of issues around racially biased sentencing approaches, etc. None of these will be covered here. 
 In fact whilst I do have something of a legal background and qualification I and I think we will deliberately not be speaking from that perspective on this matter. At least in part it's because of a belief that there is a somewhat constraining influence of the formal truth required by law when compared to the simple social truth which engages much more thoroughly with complex, comprehensive social realities and perceptions for ordinary people. Particularly victims of violence and human rights abuse. 
 Indeed it is very often the issues of formal truth both at an organisational level and in terms of what the courts chose to seek by way of answers that sometimes masks what we believe is either subtle explicit or implicit culpability. Culpability which is not so much based on individual guilt and our concerns are not to focus on the individual responsibility of particular judges or magistrates. But rather which raise very critical questions for us. In terms of how we guarantee that these problems do not re-emerge in our society. And our focus therefore is essentially, here is a concern to implore the commission in dealing with this matter to - as I'm sure it will, be forward looking rather than simply backward looking in dealing with these issues. 
 We try and represent civil society in our scrutiny of judicial institutions and our basis is in many respects explicitly moral rather than legal. 
 In making the argument that judicial officers were simply bound by laws passed by parliament even if they were immoral we play a key role I believe in sustaining a distinction between law and morality. Which is critical to shaping the fundamental challenges which we face ahead of us in transforming public perceptions of law and of the courts. It is precisely this distinction between law and morality which lies at the roots of laws which could dehumanise and still be implemented and which criminalised ordinary political behaviour. 
 The consequence is quite simple. It is law itself in the society which has lost respect. It has become moral or noble, for good reason in the past to be on the wrong side of the law. And the key issue here is that we need to recognise that the flipside of the historic criminalisation of politics by our law and our legal institutions is manifesting itself very much today in the other side of that coin which is the politicisation of crime. These are in our opinion the roots of a culture of impunity in our society today. 
 We must add to this a recognition of the active role rather than simply problems of omission. Active issues of commission. Whereby legal officers, judges, magistrates, drafters of legislation actually assisted in drafting such Draconian measures actively sustained states of emergency and the abuses of torture in detention which went with them. Here we talking about a culture of impunity not just on the part of a population which has lost respect for law and with the legacy of which we live with today but, also the police and agencies of the Apartheid state. We don't have to look much beyond the sustained incidents of torture in detention, deaths in police custody today in ordinary criminal matters to recognise the extent to which this has intruded and remains a characteristic of our institutions of criminal justice.
 I would believe we need to add to this an understanding of the way in which we have witnessed the bastardisation and manipulation of customary law in our society. Primarily in the period before that considered by the commission but not exclusively and for political ends. In that it contributed critically to denying the majority of South Africans in a sense a legal place of belonging in our society. All of these features have contributed fundamentally to driving people into very noble causes outside of the realm of justice.
 The consequence as I've mentioned is a culture of impunity, a loss of respect for the law itself. Which ultimately unless redressed, I believe, we believe lies at the root not only of current problems around criminal violence but future problems as well. In respect of both future political and criminal violence. 
 The danger needs also to be considered. That the T.R.C. may be a vehicle complicit in this culture of impunity through it's administration of an amnesty. For that reason because of that danger it's our view that it is vital for the commission as you are doing to rigorously scrutinise judicial institutions. Building reconciliation at this level is necessarily as I've mentioned a forward rather than a backward looking process. The ultimate objective must be to transform judicial institutions and the entrenched culture of these institutions. To rebuild popular confidence in the law itself and popular perceptions that the law and morality are compatible rather than incompatible with each other. This is absolutely not necessarily about judges and magistrates and their capability at an individual level but about the implications for the state of law itself in our society. And our judicial institutions in a future South Africa.
 The hallmark of democracy is a culture of justification. We cannot expect this of disillusioned and frustrated victims of human rights abuse if we cannot ask it directly of our judges and magistrates themselves. Whether we consider them guilty, culpable or not as individuals they need to speak themselves. They need to be heard by the people of South Africa themselves and in so doing and I believe they need to do it here, they need to break a tradition of distanced judging in our society. Which very often lies at the core of non-accountable justice which rapidly looses the confidence of the people which it affects.
 It's only then that we can begin our process and it is essentially ours once you are no longer here we believe of building a human rights culture. Of rebuilding the rule of law and of establishing a legal and moral place of belonging for South Africans. The constitution is not enough. It is important. It is a critical vehicle for reconciliation in our society but institutional change is equally important. Our recommendations will hopefully focus on those things. On the forward looking vehicles including judicial training, the tools by which we can build a human rights culture, effective monitoring and institutional change. And I'll leave it to Vinard to touch on some of those recommendations. They will be dealt with more thoroughly in our full report.

CHAIRPERSON: Thank you.