How South African Judges Undermined the Rule of Law in Britain

By Anderson, Bruce | The Spectator, December 5, 1998 | Go to article overview

How South African Judges Undermined the Rule of Law in Britain


Anderson, Bruce, The Spectator


Hard cases make bad law. But it is much worse when that bad law is propounded by the highest court in the land. The Pinochet ruling by the House of Lords was an unhappy day for British justice. We may have thought, in our complacency, that our judges and our legal system were immune from a corruption which is endemic in lesser jurisdictions. Thanks to their Lordships, we now know better. The malign consequences of the Pinochet judgment will be with us long after the General himself is beyond the reach of any earthly tribunal. The Lords' decision demonstrates that we are already well on the way to a politicised senior judiciary, and therefore a debased judiciary no longer capable of upholding the rule of law.

It had seemed unlikely that their Lordships would act in this way. In his earlier ruling, the Lord Chief Justice, Lord Bingham, had been emphatic. Whatever one thought of General Pinochet, he was entitled to immunity; that was that. No stern and unbending conservative, Lord Bingham is a most highly regarded lawyer. It seemed that his ruling was authoritative and the appeal to their Lordships merely pro forma. But some Law Lords had other ideas.

Five of the 12 Law Lords would generally hear cases such as the Pinochet appeal. In this case, the process of selection had an interesting consequence. There are at present two Law Lords of South African origin, Lenny Hoffmann and Johan Steyn, both of them emigres during the era of apartheid. Both of them were chosen for General Pinochet. It is reported that, on hearing this, Lord Bingham's first reaction was that General Pinochet would start the proceedings with two votes against him. The Lord Chief Justice was right.

The two South Africans are interesting characters, but Lord Hoffmann has the greater reputation among his fellow lawyers. Lord Steyn is admired for the stand he took in South Africa, the more so because he is an Afrikaner. But he was never considered to have demonstrated outstanding ability at the English bar; scrupulously politically correct, however, he adapted to the times and won accelerated promotion. But his judgment in the Pinochet case neither rebutted Lord Bingham's arguments nor the doubts about Lord Steyn's intellectual prowess.

Lord Steyn tried to deal with the immunity question by distinguishing between acts of government, which would be covered, and actions such as torture and genocide which by their nature cannot be governmental. Anyone who commits such crimes is, therefore, acting in a strictly personal capacity and cannot claim immunity. But Lord Steyn is refuted by vast tracts of modern history, including the history of South Africa. Does his Lordship really believe that none of the acts of cruelty committed during the apartheid era were governmental actions? Once the question is posed, the proposition's absurdity is self-evident.

In a dissenting judgment, Lord Lloyd went to the heart of the question. The immunity claimed is not primarily General Pinochet's; it is Chile's. Chile is a sovereign government, entitled to decide when it will allow its citizens to claim the immunities which are available to diplomats and heads of state, and when it will waive them. We on our part are not bound to accept Chile's ruling. It is open to us to say that any state which grants immunity to the likes of General Pinochet is not a state with which Britain can entertain diplomatic relations. In that case, all diplomats would be withdrawn and no heads of state would pay visits, so questions of immunity would no longer arise. …

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