Albie Sachs interview: A peek inside the mind of those who sit in judgment

Published on Sunday 28 June 2009 21:59

THE whole purpose of courts and courtrooms is to take the heat out of the issues playing out in them. Not the passion, just the heat. Modern-day judges, especially those in the highest courts of the land, in their various uniforms of rich silk that cover another uniform of dark respectability, tend towards the self- effacing, if not anonymous.

But studied impartiality on the bench and the severe language of a written judgment should not be mistaken for impersonality in the thinking and discussions that lead to the conclusions in the judgment. Judges are people too.

In The Strange Alchemy of Life and Law, Albie Sachs, approaching the end of his 15-year tenure on the Constitutional Court of South Africa, explores the experiences of his own life and their effect on his perceptions on cases that were brought before him. The purpose of the book is to open a window on the interaction between the codes, intellectual traditions and underpinning philosophies of the law and the individual humanity of judges.

His own experiences have been extreme. He was called to the South African Bar in the 1960s and, as far as was possible, used the law to challenge the application of apartheid. As a member of the ANC, he was arrested and spent two extended terms of solitary confinement in jail that he says were intended to break his mind and spirit. He was subsequently exiled. He taught law at Southampton University in the 1980s. "They thought I should lead the course on International Law," he says, "on the basis that I was a foreigner."

In Mozambique, he was blown up by a car bomb placed by South African security agents, losing his right arm and the sight of his right eye. Paradoxically, he explains that it was when he realised he was going to survive that he knew apartheid would fail. "If my frail and battered body could get over the worst apartheid could do to it then I knew it was finished," he says.

In Mozambique, he was asked by Oliver Tambo to draw up a legal code within the ANC for its treatment of infractions of discipline such as drunkenness or sexual abuse, all the way to its treatment of prisoners.

Mr Sachs describes his pride in the sophistication of the movement in debating the issues and reaching a conclusion that it would not match the torture and assassination practices of the South African state.

The stance fitted with the earlier renunciation of terrorism. Mr Sachs says: "Oliver Tambo and the other ANC leaders did not want us to develop the souls of terrorists. What does terrorism do to those who use it? It was the morality of justice that turned out to be strong and not weak."

He adds: "These were essential moments that allowed us after apartheid to look each other in the eye as citizens."

On the fall of apartheid, he was one of the group who drew up the new South African Constitution, and he has been a member of the 12-judge Constitutional Court that has been the first judicial generation to test it against the demands of real cases, dramatic and mundane.

On his second visit to Edinburgh in two weeks, Mr Sachs says: "I wouldn't like this book to be seen as a South African/anti-apartheid book. Then it gets locked into a very narrow frame.

"I meant it to be a prism through which the deliberations and conclusions of judges in democracies – and sometimes brave judges labouring in non-democracies – connect with the anxieties, fears, dreams and hopes of the people before them."

The first of his two visits was as a member of an 11-judge delegation meeting with senior UK judges in a formal weekend of discussion and debate on issues of common legal interest.

Apart from MrSachs, the South African contingent included others who had been in prison for their part in the struggle and most had experienced state-enforced discrimination because they were black. Even allowing for his generosity of spirit, what basis could he imagine for common experience among the UK contingent who had never personally known poverty, privation, humiliation or injustice?

"Well, experience doesn't read directly across. Most of my colleagues on the Constitutional Court are black and know what it was to be discriminated against in their skin.

"However, one of our white judges collected wine labels and was a connoisseur of food and fine wine, but he is one of our deepest thinkers on human dignity. His judgments are soulful and profound.

"That is the strange alchemy of life and law. You don't need to have had identical extreme experiences to have a strong sense of life and dignity."

Mr Sachs feels he is a member of a worldwide community of judges who have to assemble their thoughts and make the definitive judgment on the cases before them. He acknowledges freely in his book how difficult he finds the process of getting the words sorted out in his mind and down on paper. He states that "every judgment is a lie" because the lifelessness of ink on paper does not convey the passions in the case.

There are extracts from several of the court's key judgments of the past 15 years and his explanation of the cases and the challenges to legal interpretation they raised. One was the reason for his return to Edinburgh last week to give a lecture on the rights of the child. It was a case in which the Constitutional Court decided that the need of the children of a convicted fraudster to have their mother at home outweighed the need for the state to punish her by sending her to prison.

Mr Sachs's book is not just an appeal for sympathy for poor old judges who have to make difficult decisions but an invitation for public understanding of the abstract strengths as well as the humanity of the process.

"The whole point of judging is judging … whether you are judging acts in a TV idols contest or the most contentious case in court," he says.

"Of course, it is the most contentious cases that provide the real tests for our commitment to our fundamental principles. There's no mechanical predictability. It's about your vision of the world."

&#149 The Strange Alchemy of Life and Law, by Albie Sachs, Oxford University Press.