JUSTICE STUDENT HUMAN RIGHTS NETWORK

CONTENTS

• Welcome
• Introduction
• Briefings
• Case note
• People
• What you can do

Welcome to the fourth edition of the JUSTICE Student Human Rights Network bulletin

From Suzanne Lambert
Barrister and Member of JUSTICE Council and Executive Board
Chair of JUSTICE Student Human Rights Network project

Welcome to JUSTICE's Student Human Rights Network. Some of you have been members of the network over the last year but many reading this bulletin may be new to the network and even new to university or legal training. This autumn term is generally a very exciting time with a myriad of new opportunities and new experiences.

The first phase of JUSTICE's experiment to provide an interactive and vibrant network for students, trainees, and pupils interested in human rights is officially over. However, we have been extremely pleased with the enthusiastic response we have had over the last academic year to the network.

In particular, it is heartening to see that well over 800 students, trainees and pupils have signed up to the network and even more encouragingly, we have had excellent attendance at our Saturday seminars at the Guardian Newsroom in London. Over the course of four seminars, there has been an attendance of approximately 300 of our members. During these seminars we have had the benefit of some excellent speakers such as Rabinder Singh QC, Nick Blake QC, Shaheed Fatima and Shaheen Rahman, as well as workshops and debates led by members of JUSTICE staff (Roger Smith, Eric Metcalfe, Sally Ireland, Emma Douglas, and Rachel Brailsford). Importantly, the quality of debate and contributions from members of the network has been of an extremely high level, even given the range of academic attainment, with some being graduate students, and others just starting out their degree, and even in one case about to sit A-Level examinations.

One of the specific aims for this academic year is to expand membership of the network and particularly to encourage greater involvement of pupils and trainees as we believe that those embarking on a career in law would have an interesting perspective on human rights and on its practical applications. We also believe that the network would have a lot to offer pupils and trainees, whether it be through these electronic bulletins or at the Saturday seminars.

Generally, in the upcoming year we hope to continue with the experiment, building upon our successes, but also learning from our experiences. Therefore, we are planning to hold two more seminars in November (Saturday 10 for undergraduates and Saturday 24 for postgraduates) and we are grateful that the Guardian Newsroom has extended its hospitality once again. We are also looking towards planning a major conference around Spring next year and we hope that this conference will allow us to have a number of break-out sessions that would cater to a number of different interests in the broad area that is human rights and that would also facilitate discussion at different levels in order to reflect the range of academic attainment of members.

Finally, we welcome your comments and look forward to hearing from you. As we expand the network website we will be able to accommodate articles or comments on topical human rights issues. Also, any ideas on the future of the network are welcomed as we are keen to make this experiment work and to ensure that the network is truly interactive and reflective of the needs of its members. Email jshrn@justice.org.uk with any comments.

We hope that amidst the flurry and excitement of a new academic year or the start of your pupillage or training contract, you will take the time to be an active member of the network and to join JUSTICE if you have not already done so.

Top

Welcome to the first electronic bulletin of JUSTICE's Student Human Rights Network for 2007-2008. This is the second year of a project, the success of which has surpassed our expectations. We want to provide inspiration, information and interest to students at all levels - in colleges, universities and in firms and pupillage - on human rights.

JUSTICE is a unique organisation. You can read more about us at www.justice.org.uk. We have a membership of some 1500 which ranges from some of the highest judges in the land to students who have not yet definitely identified the law as their career. This is our 50th anniversary year and, as part of that, we are publishing a 'futures' series of pamphlets on the future direction of policy. More details are available on the website. We regularly speak at colleges, universities and training institutions. The network is a response to the wave of interest in human rights that we have encountered.

This is the first of three bulletins that we will produce for this academic year. They include interviews and conversations with leading figures in human rights in this country and elsewhere. This bulletin includes two very different activists from South Africa and another from India. These are both countries that have embedded human rights in their constitutions - an issue which has begun to be debated in the UK. The bulletin also contains briefing notes on pre-charge detention in terrorism cases and on the Discrimination Law Review, a case note on a highly important case that was before the House of Lords in June and in which JUSTICE intervened, Al Skeini v Secretary of State for Defence, as well as a section on ways to get more involved with the network, with JUSTICE and with human rights generally.

JUSTICE is engaged in human rights at the highest level, including the debate on bills of rights, on which we are about to publish a major report, as a third party intervenor in some of the key cases and as a participant in the major policy debates. We want you to enthuse you with the enormous potential of a human rights approach as a tool of empowerment, both in this country and internationally. Read the bulletin; explore the website both of the network and of JUSTICE; come to one of the seminars that we are holding at the Guardian Newsroom in November; think of holding discussions at your university or college; contact us if you want a JUSTICE speaker; join JUSTICE as a student, pupil or trainee member.

In South Africa and India, human rights are conceived as transformative - having a capacity to change and improve people's lives. So they do. That is why they are so exciting and so important.

Top

BRIEFINGS

Pre-charge detention in terrorism cases

The Discrimination Law Review

Briefing: Pre-charge detention in terrorism cases

What is pre-charge detention?

Pre-charge detention is a shorthand term for the period that a person can be detained by the police between being arrested and being either charged with a criminal offence or released.

What is the difference between pre-charge and post-charge detention?

Once a person has been charged with a criminal offence, they are eligible for bail. The rules for granting bail differ in certain cases. Generally speaking, however, there is a presumption that bail should be granted.

What is the maximum period of time a person can be detained pre-charge in non-terrorism cases?

In normal criminal cases, the maximum period is 72 hours.

Section 41(1) Police and Criminal Evidence Act 1984 (PACE) provides that the police can only detain a person for 24 hours following arrest before the person must be brought before a court or released. However, section 42 allows that - in the case of serious arrestable offences - detention can be authorised by a police officer of Superintendent rank for up to 36 hours. Further detention of a suspect up to a maximum of 72 hours can only be authorised by a magistrate.

What about terrorism cases?

Anyone arrested under section 41 Terrorism Act 2000 is subject to a special regime for pre-charge detention under Schedule 8. This includes not only longer maximum periods of detention but also restrictions on obtaining legal advice in certain circumstances.

The maximum period of detention under Schedule 8 was originally set at seven days in 2000. However, this was amended by section 306 Criminal Justice Act 2003 to 14 days. Following the 7 July 2005 bombings in London the government announced proposals to extend this to 90 days. These were defeated in the House of Commons in late 2005, but an alternative measure was passed (section 23 Terrorism Act 2006) to extend the maximum to 28 days.

In July 2007, the government announced proposals to legislate to extend the maximum period beyond 28 days.[1]

Why are terrorism cases treated differently?

The government argues that terrorism cases require longer periods of pre-charge detention because of the complexity of investigating terrorism cases, the difficulty in obtaining admissible evidence, and the importance of protecting the public from terrorist attacks.

But don't the police need some evidence before they can arrest a suspect?

Section 41(1) Terrorism Act 2000 states that a police officer may arrest a person 'whom he reasonably suspects to be a terrorist'. The requirement of reasonable suspicion means that there must be some objective basis for the police officer's belief.[2] However, this need not be evidence that is ultimately admissible in court. In particular, police frequently refer to the need to arrest terrorist suspects based on tip-offs from intelligence rather than hard evidence:

Because of the serious nature of the [terrorist] threat, it may be necessary to act on intelligence rather than waiting for further information, admissible as evidence, to be gathered.[3]

By contrast, charges can only be laid where there is sufficient admissible evidence to support them.

What human rights are engaged by extended police detention?

Article 5(3) European Convention on Human Rights (ECHR) states that anyone arrested on suspicion of a criminal offence:

shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial.

Okay, so what does 'promptly' mean?

In 1988, the European Court of Human Rights held that the detention of three IRA suspects for up to four days under the terms of the Prevention of Terrorism Act (Temporary Provisions) Act 1984 was a breach of Article 5(3) because they were not brought 'promptly' before a judge.[4] The Court said that:

Judicial control of interferences by the executive with the individual's right to liberty is an essential feature of the guarantee embodied in Art 5(3), which is intended to minimise the risk of arbitrariness.[5]

An essential feature of this 'judicial control' under Article 5(3) is that the judge has the power to order the release of the suspect.[6]

In October 2005, in a case from South Eastern Turkey, the Court held that pre-charge detention of more than six days in custody without being brought before a judge was a breach of Article 5(3), 'notwithstanding … the special features and difficulties of investigating terrorist offences'.[7]

What are the existing safeguards against prolonged detention in terrorism cases?

As with pre-charge detention under PACE, the longer periods of pre-charge detention under the Terrorism Act 2000 can only be authorised by a judge rather than police.

However, under paragraph 32 of Schedule 8, the judge is only required to be satisfied that 'there are reasonable grounds to believe that further detention is necessary to obtain relevant evidence'; and that the police investigation is being conducted 'diligently and expeditiously'.

In addition, under paragraphs 33 and 34, neither the detained suspect nor his or her lawyers are entitled to see all the evidence that the police and prosecution may put before the judge in support of their application for continued detention. As the Parliamentary Joint Committee on Human Rights stated in July 2007:

the judicial scrutiny of extended pre-charge detention is not proper judicial scrutiny: in summary, it falls well short of a full adversarial hearing because under the relevant provisions of the Terrorism Act 2000 detention can be extended in the absence of the detainee or on the basis of material not available to them.[8]

But don't other countries also have longer periods of pre-charge detention?

No. At 28 days, the maximum period of pre-charge detention in the UK is the longest of any common law country.

What about other EU countries?

Many European countries operate an inquisitorial system of criminal proceedings, in which the investigation is headed by a judge rather than by police. This means that the full 'judicial control' required by Article 5(3) ECHR is present in the investigation from a very early stage, rather than the very limited supervision that exists under Schedule 8.

What are the alternatives to extending pre-charge detention?

The most obvious alternative is to lift the ban on intercept evidence, which would allow charges to be brought against suspects rather than being detained while other evidence is gathered. The UK is virtually the only country to ban intercept evidence in criminal proceedings.

Other measures include making full use of the threshold test in terrorism cases; legislating to allow questioning of suspects post-charge; and using the power to make regulations under the Civil Contingencies Act 2004 to extend the maximum period of pre-charge detention on a temporary basis in emergencies.

Where can I get more information?

Home Office proposals for extending pre-charge detention (July 2007)

Joint Committee on Human Rights report on Counter-Terrorism Policy and Human Rights: 28 days, intercept and post-charge questioning (July 2007)

JUSTICE submission to the Home Affairs Committee on Counter Terrorism Proposals (June 2006)

Home Affairs Committee report on Terrorism Detention Powers (July 2006)

Back to Briefings contents

Top

2

Briefing: The Discrimination Law Review

What is the Discrimination Law Review?

The Discrimination Law Review (DLR) was set up in February 2005 to 'undertake a fundamental review of discrimination and legislation in Great Britain, and bring forward proposals for a clearer and more streamlined equality legislation framework, which produces better outcomes for those who experience disadvantage.' The government asked it to consider the fundamental principles of discrimination legislation and its underlying concepts and do a comparative analysis of the different models for discrimination legislation, investigate different approaches to enforcing discrimination law, develop an understanding of the evidence of the practical impact of legislation - both within the UK and abroad - in tackling inequality and promoting equality of opportunity, and investigate new models for encouraging and incentivising compliance.

What has happened to the Discrimination Law Review?

On 12 June 2007 the Discrimination Law Review published its long awaited and much postponed green paper: A Framework for Fairness: Proposals for a Single Equality Bill for Great Britain. The timing of publication seems to offer one very disturbing message about the government's commitment to the process of discrimination law review - the consultation ended on 4 September, and so it took place over the holiday season, just when the current Commissions (the Commission for Racial Equality, the Disability Rights Commission and the Equal Opportunities Commission) were winding down, and before the new Equality and Human Rights Commission was operational. It is true that the green paper had been long awaited, but the publication and deadline dates seems to suggest a degree of indifference to the product of the consultation that is sought.

How did the Commissions respond?

It is perhaps not surprising that there were very mixed re-actions to its content. While the Disability Rights Commission commented that the green paper had 'conspicuously failed to measure up to its terms of reference', the Equal Opportunities Commission similarly noted 'today's Green Paper has missed a real opportunity to tackle the pay gap'.

And while the Commission for Racial Equality rather more mildly noted that 'the Green Paper needs to improve through this consultation, if we are to get the modern simple equality legislation relevant to today's society' the DRC argued that:

Clear, comprehensive and effective new equality legislation is vitally needed to inject new momentum into the battle for real equality for disabled people, older people, women and men, transgender people, lesbians and gay men and people of different religious beliefs.

What does the green paper propose?

The green paper makes a series of detailed proposals to harmonise and simplify the law. In particular, it proposes to unify the definitions of indirect discrimination, to introduce the concept of genuine occupational requirement for all the prohibited grounds, except disability, and to adopt the same objective justification test for all the existing indirect discrimination provisions. JUSTICE considers that the wording of these provisions should mirror as closely as possible the EC Directive provisions that they are implementing.

The green paper is also consulting on extending anti discrimination provisions in respect of age in relation to access to goods, facilities and services. Legislation to counter such age discrimination has a vital role to play in establishing a fair and equal society. Substantial evidence exists of the inequalities experienced by older people whether as patients in receipt of health care or social services, as volunteers or in respect of insurance and other financial services. JUSTICE considers that age discrimination beyond the workplace should be prohibited by legislation, although the way in which this should be done will need careful consideration. Consultation with affected groups and service providers will be necessary in order to prevent unintended consequences and the erosion of all currently permitted forms of positive action.

Then there are the proposals to streamline provisions in a way which may cause them to lose some of their strength. Thus the green paper proposes a single public sector equality duty for at least gender, race and disability and possibly for sexual orientation, religion or belief and age as well. However, the price for this simplification of equality duties appears to be an overall substantial dilution of the existing duties. This is a proposal that has drawn universal condemnation from the existing three Commissions. JUSTICE would want to see a general duty that is robust, which covers all the prohibited grounds but recognises areas of differentiation. In particular, the duties should cover gender, trans-gender, pregnancy and maternity, race, disability, religion or belief, sexual orientation and age.

JUSTICE considers that it is important that any new equality law is able to take account of the needs of the whole person, not just one aspect of their identity, hence the law should be able to deal with problems of multiple discrimination. Multiple discrimination occurs when someone experiences discrimination on more than one ground, for instance, by being treated less favourably not only on grounds of age but also because of their sexual orientation. Provisions to deal with multiple or intersectional discrimination are dismissed with the assertion 'we do not have any evidence that in practice people are losing or failing to bring cases because they involve more than one protected ground'. This has not stopped them from using the concept of multiple discrimination to justify the setting up of the Commission for Equality and Human Rights or, in the green paper, the need for a single equality duty. The suggestion that more evidence is needed has led the House of Commons Communities and Local Government Committee to observe 'we urge the Government to recognise the inherent difficulty in amassing evidence of actions that have not been taken.'[1]

The green paper also seeks to consult on equal pay, positive action (referred to as 'balancing measures'), harassment, gender re-assignment and on effective dispute resolution. Each one a significant area meriting careful consideration on its own.

What has been left out of the green paper?

The most significant omission is the exclusion of a clear strong statement of purpose for the new Equality Act. JUSTICE considers that a statement of purpose at the beginning of any single Equality Act would be beneficial and give the Act as a whole an overall coherence. It would set out the objectives and goals of the Act and thus provide guidance to those seeking to interpret the Act, both courts and tribunals and employers and service providers.

Much work still needs to be done if we are to convince the government to put in place a single Equality Act fit for the 21st century.

Where can I find out more?

Department for Communities and Local Government

The Equality and Human Rights Commission

House of Commons Communities and Local Government Committee report on Equality (July 2007)

www.justice.org.uk

Back to Briefings contents

Top

Sixth Report of Session 2006-07, HC 468 at para 34

Briefings form an important part of JUSTICE's work. To see all our current work visit the In The News section of our website.

R (Al-Skeini and others) v Secretary of State for Defence [2007] UKHL 26; [2007] 3 W.L.R. 33

Facts

Five Iraqi civilians had lost their lives in south Iraq having been shot by British troops in separate armed incidents. A sixth Iraqi civilian had been arrested by British forces and taken into their custody at a British military base, where he later died allegedly as a result of torture carried out by British soldiers. The deceased Iraqis' relatives asked the Secretary of State to hold a public inquiry into the deaths and he had refused. They challenged by way of judicial review his refusal to hold an inquiry and his refusal to accept liability for their deaths and torture.

The basis of the relatives' claim was that under Article 2 European Convention on Human Rights (ECHR) they had a right, commonly referred to as a 'procedural or adjectival' right, to have a death for which the state was responsible investigated. This implied right has been recognised by Strasbourg on a number of occasions, and was accepted in the UK in the decision of Re McKerr [2004] UKHL 12; [2004] 1 W.L.R. 807. Section 6 Human Rights Act 1998 (HRA) makes it unlawful for a public authority to act in a way which is incompatible with a Convention right.

Held

The House of Lords sought to provide a definitive ruling on the geographical and jurisdictional scope of the ECHR and HRA. The first question the Lords had to consider was whether the ECHR can apply in a country not party to the Convention? They found the answer to this question in the decision, discussed below, of the Grand Chamber of the European Court of Human Rights in Bankovic v Belgium (2001) 11 BHRC 435 (and dismissed subsequent decisions in which the ECtHR sought to interpret Bankovic as being unhelpful). The second question was whether the HRA (particularly section 6) applies to acts committed by UK public authorities outside the UK? The Lords did not answer this question with one voice. The majority held that that the HRA did have extra-territorial application; Lord Bingham dissented.

In Bankovic, the relatives of people who had been killed in a missile attack from a NATO aircraft on the RTS building in Belgrade claimed that the NATO powers had violated, inter alia, their Article 2 ECHR procedural right. Article 1 ECHR (which is not incorporated by the HRA) provides that the Convention states shall secure to everyone within their jurisdiction the rights and freedoms set out in the Convention. The Grand Chamber decided that Article 1 is determinative of the scope and reach of the entire Convention system of human rights protection. It noted that the jurisdiction of states is essentially territorial: the Convention operates in a regional context, in the legal space (espace juridique) of the contracting states. However, there can be exceptional cases, when 'through the effective control of the relevant territory and its inhabitants abroad as a consequence of military occupation or through the consent, invitation or acquiescence of the government of that territory, [the UK] exercises all or some of the public powers normally to be exercised by [the government of that territory]'. As the Lords explained, it would make no sense to hold a contracting state responsible for rights violations unless it was within its power to prevent them or protect against them.

In terms of the scope of the HRA, the starting point is that international law does not prevent a state from exercising jurisdiction over its nationals travelling or residing abroad, since they remain under its personal authority. Indeed, Parliament has a legitimate interest in regulating their conduct. However, legislation does not in general apply to persons or matters outside its territory. When considering whether Parliament intended the HRA to have this effect, it is necessary to have regard to its overall nature and purpose. Its purpose was to provide a remedial structure in domestic law for the rights guaranteed by the Convention. It would not be offensive to the sovereignty of another state to make those remedies available on its territory for acts of such authorities.

The majority concluded that where a public authority has power to operate outside of the UK and does so legitimately (with the consent of the other state) 'in the absence of any indication to the contrary, when construing any relevant legislation, it would only be sensible to treat the public authority, so far as possible, in the same way as when it operates at home'. Hence, the territorial scope of the obligations and rights created by sections 6 and 7 of the HRA were intended to be co-extensive with the territorial scope of the UK's obligations under the Convention. Hence, Article 2 in the HRA must be read as applying wherever the UK has jurisdiction in terms of Article 1 of the Convention.

The majority held that the five Iraqis killed in incidents were not within UK control and were thus not within its jurisdiction. The sixth Iraqi was in British control and within jurisdiction. In essence their decision is that the mere fact that an act which would engage the Convention if committed in the UK does mean that it would ipso facto engage the Convention if carried out by the UK in Iraq.

Lord Bingham dissented on the basis that the reasoning in Bankovic was not sufficient to override a fundamental principle of English law: unless Parliament gives some indication to the contrary, it is to be assumed that its Acts extend to each territory of the United Kingdom but not to any territory outside the United Kingdom. This is because Parliament does not design its legislation to govern its subjects beyond the territorial limits of the United Kingdom.

Comments

There is no doubt that the perceived threat from international terrorism has given rise to a number of difficult human rights issues, primarily concerning the rights that a person suspected of terrorism is to be afforded. As the threat of terrorism is seen to be an international one, it is unsurprising that these difficult human rights issues now often arise in an international context. English courts are asked to tread a difficult line. On the one hand, they do not want to interfere with the sovereignty of other states simply because they have a different conception of human rights protection. On the other, they don't want to condone the emergence of legal black holes (as Lord Steyn described Guantanamo Bay), where people have no legal redress for human rights violations. In Al Skeini, the Lords have made it clear that English Courts are prepared to step in to protect people against human rights abuses that take place outside the UK provided certain conditions are met and for this reason, their decision should be welcomed.

In October 2007, the House of Lords will once again be asked to consider the role the HRA and ECHR play in international law when it hears the appeal in R (Al-Jedda) v Secretary of State for Defence [2006] EWCA Civ 327; [2006] 3 W.L.R. 954. In that case, the Court of Appeal held that the scope of Article 5 ECHR (right to liberty) had been narrowed by a United Nations Resolution.

Top

Doron Isaacs

Geoff Budlender

Colin Gonsalves

The following three interviews were conducted in South Africa by JUSTICE's director, Roger Smith, during a visit to Cape Town in September 2007 for the conference about which Doron Isaacs speaks. The constitution of South Africa is a remarkable document, agreed in 1994 to replace an interim constitution agreed in 1992. The South African government itself proclaims it rightly as 'one of the most progressive in the world'. Part 2 sets out a Bill of Rights designed as a delicate balance to maintain the rule of law but also to be transformative in terms of the social and economic rights of the poorest in society. It can be found at http://www.info.gov.za/documents/constitution/index.htm. The Legal Resources Centre, where Geoff Budlender worked, remains one of the most impressive law centres in the world. Its website is http://www.lrc.org.za/home. The Indian constitution, about which Colin Gonsalves speaks, can be found at http://indiacode.nic.in/coiweb/welcome.html.

Doron Isaacs

You've just organised a conference for students just outside Cape Town. Tell me about it.

We thought that human rights and social justice were not as present in our legal studies as we felt that they should be.

You are at the University of Cape Town?

Yes - in the third and final year of a law degree that followed my first degree in commerce.

So you have studied constitutional law for three years in the new South Africa with its new constitution?

We had one course in constitutional law but what matters is not only the subject but also the attitude. You should not study a fantastic constitution like ours in sterile way. That is not always what has happened with our class but it is the sense a lot of us have coming to the end of our law degrees. So this seminar was first and foremost about educating ourselves on what we saw was important.

And what did you think was important?

Much of the seminar dealt with the ways that injustice manifests itself. This is largely about inequality in a historically divided society that relates to health, education, housing, basic resources, basic means of support. We also wanted to look at strategic litigation, remedies and legal innovation. Behind this is the sometimes successful role that law and lawyers played in the struggle against apartheid in South Africa because there are lessons there for the present.

And how many students did you get?

About 150 from two universities - the University of Cape Town and the less affluent University of the Western Cape. We raised money both within and outside the university - without actually going to corporate donors. In planning we spent the most time discussing the aims of the seminar and discussing why we were doing it. That was very important.

So there was a group of you?

Yes, there was. We set our sights very high in terms of the speakers we wanted and we didn't allow the fact that we were students to intimidate us. We felt that top presenters should want to come. And they did.

And you did get some eminent people to come?

Yes. We had the former Chief Justice of the Constitutional Court, Arthur Chaskalson, the recent Deputy Health Minister Nozizwe Madlala-Routledge who was dismissed because of her challenge to the President on AIDS, Johann Kriegler a former judge of the Constitutional Court, experienced advocate Geoff Budlender, AIDS campaigner Zackie Achmat, senior advocate and activist from India Colin Gonzales, High Court Judge Dennis Davis, yourself, and others.

You held the conference over a weekend.

Yes. In quite a basic facility - bungalow accommodation, food that we prepared ourselves, communal bathrooms, evenings around a campfire with a few drinks and hot chocolate. By the seaside.

Did it work?

Yes. It was enormously successful. There is a real sense among the students of joy at finding so many similarly committed people at the potential for what it can mean to be a lawyer and the sense of this really being the beginning of a sustained effort.

In terms of an organisation or as individuals?

An organisation that may go forward and hold such events in the future. Our work as the Student Seminar for Law and Social Justice can be followed on our website: www.sslsj.org.za. Already, a group of students met yesterday to set up a programme to give legal advice in our family courts which are largely used by poor people with no access to legal assistance.

What has been the attitude of your professors at UCT?

The Dean has been very supportive and a very small group participated in the weekend but largely it has not got their attention. I have to say that the UCT law faculty, which is filled with highly competent people, has not, as a whole, orientated itself to the needs of South Africa today. There is no sense of being in a country where only 10 per cent of the population can even afford a lawyer; where a crime like rape is reported in only onein ninecases and the conviction rate thereafter is under five per cent; most importantly where the principles in the Bill of Rights should be looked at as unfulfilled challenges rather than celebrated as achievements, because they exist only on paper.

Do you have contact with British students and would you like more?

We have had very little at present. We think it is important to have contact on a number of levels. Contact with foreigners like you and Colin at the seminar helps us to understand the universal nature of human rights problems. We need to learn from each other. And there are also ways in which British students can volunteer and work in South Africa in meaningful ways that go beyond symbolic gestures.

And if someone wanted to assist, what could they do?

We will help to direct people. Numerous organisations presented their work at our seminar and are looking for volunteers. These included the Treatment Action Campaign (TAC), Legal Resources Centre, Women's Legal Centre and the Applied Education Research Organisation (AERO) which seeks to address inequality in schooling in South Africa.

All of which are currently looking for help?

Yes.

And what about you personally? What is the next step for you?

I am going to be working for AERO. Schools in South Africa were administered completely separately for the four so-called race groups. Resources were allocated unevenly deliberately in terms of what the Apartheid government saw as the intellectual potential of the different races. And the legacy is massive and being addressed somewhat inadequately by the present government. The work will involve research, activism and use of the law.

Will you ultimately train and qualify as a lawyer?

Probably. I am not entirely sure but law will always and in some way form part of the work that I want to do.

Did you have experience as an activist before coming to UCT?

When I was younger, I was part of something called Habonim, a left wing Jewish youth movement. I learnt organising and the value of education that promotes critical thinking before I came to law. What has happened during my law degree is paradoxical. I have been disappointed by its lack of reference to the South African reality but, at the same time, there has been enough to inspire me. The work of the Treatment Action Campaign (TAC) has been particularly important to me as a South African of my generation. I think it has been for lots of people.

The TAC is very active?

Yes. It is a symbol of post-1994 South African democracy. It is how you stop Animal Farm from happening. The TAC shows that the democratic project is never completed; that there is no substitute for citizen participation and that well organised campaigning with clever use of the law can work and, in this case, even save a lot of lives. The TAC, through its case against the Minister of Health, got the Constitutional Court to compel government to provide mother-to-child-transmission prevention of HIV through Nevirapine, a medicine that the government resisted supplying.

Are you optimistic about the new South Africa?

I have to say that I am unsure. My want to be involved is not about optimism, it comes from a sense of what it means to be privileged in an unequal society. The answer to your question depends on people like us. Inequality and unemployment is higher now than in 1996 when the Constitution was enacted. People are understandably angry. If the Constitution becomes real for the poorest, the weakest and the worst off then South Africa will succeed. If not, it won't.

Top

Geoff Budlender

Geoff, you are an experienced South African lawyer who appears in cases before the Constitutional Court regularly. Would you call yourself a 'human rights' lawyer?

I suppose I am a human rights lawyer. A large part of what I do is about rights. Under apartheid I thought of myself as a human rights lawyer because I was defending people's rights against the state. That is the traditional conception of what it means to be a human rights lawyer. I would say that today I try to use the rights in the constitution to transform the society in a much more positive way for two things - for government which is accountable to ordinary people, and to enable people to achieve social and economic rights. That is really about transforming society and the way in which people live. It's about full citizenship. So I am no longer primarily in the more traditional defensive role. The role of a human rights lawyer has changed in South Africa.

Let's go back to how you started.

For three years in the 1970s I worked in a one principal firm which was a general attorney's practice. A large part was criminal work in political trials. Then, I was one of three lawyers who formed the Legal Resources Centre in 1979. That was South Africa's first public interest law centre. I was there from 1979 to 1996 when I went into government.

Tell me about the Legal Resources Centre.

The LRC represented people who had no money. It focused on litigation with an impact on people's conditions under apartheid. We ran a sort of dual practice in that we were not a rarified test case organisation. We were simultaneously a service organisation, serving large numbers of people with daily problems, and trying to learn from that work to identify opportunities for a strategic and test case approach. The balance was always difficult to get right. Looking back, people remember only the test cases, but that was only part of what we did.

How did the regime react to the LRC?

It didn't know what to do with us. What we did was dressed up as lawyers acting for poor people for free. We said we would take on test cases in order to advance the interests of poor people. We behaved conventionally: we dressed like lawyers and behaved like lawyers. On the face of it, the only difference from other lawyers was the type of cases that we took, and that we did not charge any fees. The Bar and Law Society gave us backing, albeit after a bit of hesitation. The government did not like what we were doing, but didn't know what to do. Some eminent members of the profession gave us support and protection by becoming trustees. We always toned down our rhetoric, and were never shrill. The government wasn't sure what to do about us. Then in the mid-1980s there was a series of states of emergency. By that stage, we had become a real nuisance. The Minister of Justice spoke to the Chief Justice, who was very compliant, and told him to tell the judges president of the various provincial courts to tell the judges among our trustees to resign, because action was going to be taken against the LRC, and it would be embarrassing if judges were amongst our trustees. The result was mixed. One judge did resign, though he subsequently denied it was for this reason. One, who had been about to resign for other reasons, decided to stay on. In relation to the third, the judge president told the chief justice that he would convey the information, but not in the form of an instruction. That judge also stayed on. In the end, the threat passed. Subsequently, the names of people from the LRC were found on enemies' lists of the government security apparatus - including my own and that of Arthur Chaskalson, who subsequently became president of the Constitutional Court and Chief Justice.

Did you come to law with a history of student activism?

Yes. I had been a student activist in the 1970s. It was that experience that turned me to law. I was originally a medical student. The student activism brought me into contact with lawyers who defended us. I thought that this looked fun and useful. I then went into the law, with a very clear political purpose. I was extraordinarily lucky. If you had asked me why I switched to law, the description of the ideal organisation in which to work would have been very similar to the Legal Resources Centre, which happened only years later.

Since 1994, you have been a close observer, indeed participant both within and outside government, in the constitutional settlement. What is your opinion of South Africa's constitution? And of the constitutional court?

The constitution has been a remarkable success. It has taken hold of the popular imagination in a way that is quite extraordinary. It is amazing how quickly it has become part of political and popular culture. This partly reflects the nature of the political struggle that we went through. People see that as in part a struggle for rights and for accountable government. The constitution is a transformative document, and has been quite successful in guiding the processes of change. In significant measure, that is due to the role of the constitutional court, which has had to invent an entire system - some of it with very little international precedent. Whatever their weaknesses, you will find very few people who won't say that the constitution and the court have been successful. Almost everyone agrees that of the many new institutions which we have since 1994, the most successful has been the court.

The constitution sets out social and economic rights. How has that worked?

Social and economic rights have had a real battle. They have been most successful in housing. They are not only positive rights: they also have a negative component. They protect people's existing rights, and provide some protection against rights being taken away, for example by making it more difficult for public and private landlords to evict. In that sense they can operate in a manner similar to our traditional conception of civil and political rights. They also have a strong positive component. For example, the court has said that it is inconsistent with the constitution if the state housing programme makes no provision for those in immediate need or in a crisis situation. Similarly, in relation to social welfare legislation, the court has said that it is unconstitutional to have a programme which is unreasonable in terms of its gaps in provision. Where the rights have been least successful is where there is a systemic failure of a programme, and the problem is poor implementation rather than poor design. This is our biggest problem. It is difficult to see what the court can do. The problem is the question of remedies. We have not yet answered the question as to what remedies a court should order to address systemic failure. To me that has been the great eye-opener of the last seven years that I have been back in the law since I left government. We tend to think that if we find a wrong, then a remedy will follow. That is essentially a private law way of thinking. The courts have really struggled with this. It is much easier to persuade judges to decide that there has been a breach of the constitution, than to persuade them to adopt innovative, or as they would see it intrusive, remedies. I think this is because most judges are inherently conservative and also to some extent because they are concerned with the separation of powers - which is a legitimate concern.

So you would be positive about the effect of the constitution?

Surprisingly so after such a short period - in part because there has been such a big effort across the board from government and the court to make people feel that the constitution belongs to them. One of the best things that the constitutional court judges have done is to see their job as popularising the constitution and the work of their court. Judges are usually very aloof. The constitutional court judges are very unusual in the number of speaking engagements they accept, and in making themselves available to talk about the constitution and the court. This has clearly been a deliberate strategy. And government has similarly spoken a lot about the constitution - starting with Mandela and the first minister of justice. Respect for the constitution has taken hold surprisingly quickly. There are now some in government with a more traditional government attitude that judges are trespassing on their area. But I think that the tension is a sign that the judges are doing their job.

And would you be as positive about the state of South Africa as a whole?

I have a mixed response. We have had very high expectations of ourselves - partly because the transition was so quick and overwhelmingly favourable in its outcome. Our expectations were heightened, and they have not been fully met. If in 1990, you had said that this is where we will be in 2007, people would have been amazed. But if in 1997, shortly after the political transition, you had described our current position, a lot of people would have been disappointed. There is still terribly high unemployment. Poverty is still deep and broad. We still have unacceptably high levels of violent crime. We have not yet shown that we have been able to address these problems effectively. We have much more to do.

Top

Colin, you run the Human Rights Law Network in India?

Yes. We started back in 1989 with just three people, in a small office in Mumbai. From there, we have grown to become India's largest human rights law network with 21 offices and 250 full-time staff. 110 are lawyers, the rest are social activists and support staff. Our main office is in Delhi, as our work often involves litigation at the Supreme Court.

What kind of work do you do?

We spend half our time litigating and the other half campaigning on behalf of the poor. Our ethos has remained the same from day one: we never turn a needy person away. We are a bit superstitious about it. We think that turning people away brings bad luck! There are just two types of case that we will not do, however meritorious they may be: cases of men against women, and cases of employers against their employees. We don't just sit here waiting to be found. We go out and give free legal advice and representation to people in prisons, beggars' homes and juvenile homes.

Has the nature of the human rights work that you do changed over the years?

Yes. Back in 1989, we focused on labour law. I have a background in engineering and I worked with a trade union before I qualified as a lawyer. As the organisation spread throughout the country, we took on criminal law cases. Disability cases followed, and recently HIV work has become an important element of our work. Our original policy of not turning away people in need has naturally resulted in a huge variety of work. Our clients are most often women, children, Dalits (the lowest caste) and tribals (those living in forested areas). We have a website for those who would like to know more: www.hrln.org. You'll see that it is hard to find a social issue affecting the poor in India that the HRLN doesn't already actively address.

You have also done some major terrorism cases.

Yes. Following the disappearance of 2000 people in the Punjab, we managed to obtain compensation from the government for their parents. All were alleged to have died in police custody but we could prove that at least 200 were cremated without written notification to their families. Disappearances like this are a problem. For example, the state of Andhra Pradesh officially acknowledges the deaths of around 200 'unarmed combatants'a year - journalists, academics, lawyers, and ordinary people. This is routine in at least 10 of India's states. It works like this: The police catch someone, interrogate them, and then shoot them, claiming that an 'encounter'with terrorists took place. In the Punjab and Kashmir we have lost about 20 lawyers just because they acted in terrorist cases. Their bodies are found floating in the river.

So the police act illegally on a routine basis?

Yes. And no policeman is ever punished for misconduct. In 1992, some 2,000 Muslims were killed in the Bombay communal riots. A committee of enquiry named 31 police officers and recommended that they be indicted for their direct participation in the riots. Since then, every single officer involved has been promoted.

You have also worked on some major social and economic cases?

That's right. One of the most well known cases was on the right to food. We argued that this should be recognised as an extension to the 'right to life', as protected by the Indian Constitution. We brought the case on behalf of the People's Union for Civil Liberty. The Supreme Court began hearing the case and making a series of orders from 2001. It probably has a further three years to run. The case brought mid-day meals to millions of children and food benefits to poor men, women and children throughout India. It also brought about the introduction of an employment programme, designed to give the poor the means with which to buy food. Sadly, overall malnutrition levels remain the same. But, the most important result of the Supreme Court orders has been their effect in halting the planned abolition of the mechanisms for public distribution of food to the poor. People can read more about this case and the campaign around it on the Right to Food Campaign website: www.righttofood.org.

Some would say that Indian judges have been rather creative in their interpretation of the right to life in your constitution.

That's true. The right to life has been used to establish civil, political, and economic and social rights, such as the right to food, education, environment, health care and even legal aid and a speedy trial. The Indian judges acknowledge that this has involved a significant degree of judicial law-making.

Your Supreme Court has been very active.

I would agree that they were very active in the 1980s and 1990s. Things have changed since. The Supreme Court is becoming very regressive in some key areas. For example, it has privatised education, equated slum-dwellers with pickpockets, and reduced the rights of criminal defendants.

Why was it so creative in the 1980s?

It was probably a reaction to the emergency of 1975 when the government suspended the constitution and the Supreme Court did not interfere. That was a dark period. Judicial activism thereafter seemed to be an attempt by the judges to regain their hegemony. Alas, having regained their authority, they now seem anxious to lose it again! The Supreme Court is earning a very poor reputation and people are losing confidence in it. The poor no longer have access to the court system. The 1980s saw a very assertive Supreme Court that assumed jurisdiction when a poor person merely sent them a postcard. Nowadays, the Supreme Court is less bold and less likely to act.

How would you summarise the current position [of India?]

Abysmal. We have probably one of the worst records on human rights after China. The worst thing is that it is camouflaged by our democracy. Our government says to foreign diplomats that you can do business with India or talk about human rights, but not both.

Do you still find a commitment among lawyers and students to improving the situation?

In the cities, most law students are attracted by the commercial firms. In the colleges of poorer and rural areas you can still find young people who are interested. We get students to help us where we can and we accept that the low wages probably prevent them from working here for long. Only the most dedicated come. They are the hope for the future.

How do you keep a reasonable balance and stop the casework from overwhelming you?

It is difficult at times. We work very hard. We all come in on Saturdays and many of us work on Sundays too. We have a fantastically talented and committed staff.

You perform all roles yourself?

That's right. Campaigning, advocacy, lecturing. I travel and speak most weekends.

How is the Human Rights Law Network structured?

This is actually currently under review. So far it has been pretty informal. We are considering introducing a formal membership structure that could generate some income in membership fees. It wouldn't earn much. The government and Indian corporate interests won't help us, as we take on very controversial cases. We are always in the news and always prepared to speak out when many voices are silenced. Our strong stance has earned significant respect from the public. We speak out in the media and we publish a magazine called Combat Law (www.combatlaw.org), consisting of articles written by lawyers, journalists, academics and social activists.

Where does your funding come from?

Our main source of funding is the Swedish International Development Agency. The Germans and the Dutch, among others, are also significant contributors. However, the future is rather uncertain.

Why?

There is a trend amongst donors of phasing out their funds for India. They see India as a country with increasing economic wealth and therefore the means to fund its own legal services. I am glad to say that some donors understand how India really works and understand the vital importance of the work we do.

Top

1. Come to an event.

We are holding two further JUSTICE Student Human Rights Network seminars in November - Saturday 10 November for undergraduate students and Saturday 24 November for postgraduate students.

The seminars will be held at the Guardian Newsroom and are free to attend but you must make your own arrangements for travelling to London. Places will be allocated on a first come first served basis and all bookings will be confirmed by email. A waiting list will be run if necessary.

Click on the links for the programme and email version of the booking form for 10 November and the programme and email version of the booking form for 24 November.

Other events:

The JUSTICE / Tom Sargant memorial annual lecture, Wednesday 17 October

London Metropolitan University Human Rights and Social Justice 2007/08 Seminar Series

2. Read the new JUSTICE Futures paper on counter-terrorism and human rights.

The Futures series is part of our 50th year anniversary programme of publications and each one will raise interesting and provocative ideas about the future direction of policy in essay form. For more information on the Futures series, and the 50th anniversary, visit our website.

3. Join JUSTICE as a student/pupil/trainee member.

For more details http://www.justice.org.uk/supportus/becomemember/index.html

4. Write something for the student human rights network.

If you would like to have your work on the website please email jshrn@justice.org.uk.

We will publish original and interesting pieces relevant to the issues covered by the electronic bulletin. Maximum word limit of articles 1500 words. All work remains the property of the author and does not necessarily reflect JUSTICE's opinion.

5. Get involved in JUSTICE's student human rights network.

To join or contact us about anything to do with the network:

email jshrn@justice.org.uk

Top

You are welcome to use the information in this website but must attribute the source to JUSTICE in any written work

We do not bear responsibility for the content of external websites