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Your Royal Highness, it is a great and rare privilege to have been invited to deliver this 19th Sultan Azlan Shah law lecture. When the Lord Chief Justice Lord Woolf suggested to me that I might make this speech I was conscious that I was entering a very distinguished company of speakers which includes British and Commonwealth judges and eminent academics. I am delighted as a practising barrister and more delighted to be the first woman to be asked to deliver this lecture.

In the 5th Sultan Azlan Shah lecture, Lord Cooke (or Sir Robin Cooke, as he then was, President of the New Zealand Court of Appeal) began his lecture by quoting the following dictum of your Royal Highness:

‘Unfettered discretion is a contradiction in terms … Every legal power must have legal limits, otherwise there is a dictatorship.’¹

While Your Highness was actually expressing an essential premise of administrative law, this is an apt introduction to the theme of this lecture, namely the role of the judiciary in a democracy. Plainly, the powers of the executive in any modern democratic nation state are significant. Ordinarily, in such systems of government the courts will, in the words of Lord Steyn,

‘respect of all acts of the executive within its lawful province, and the executive will respect all decisions of the court as to what its lawful province is.²

However, as Lord Steyn continued, ‘[w]hen the executive strays beyond its lawful province the courts must on behalf of the people call it to account.³

The idea of justice is ancient and feminine, whether in the form of Egyptian goddess Maat, the Norse goddess Skadi and of course the eponymous Roman goddess, Justitia,⁴ the long robed woman holding the scales and the sword with her eyes often blindfolded has represented justice down the centuries. Gradually the idea of justice has become associated with the judge. As kings and queens lost their divine right and as many countries (but not the UK or Malaysia) lost their kings and queens, states continued to maintain an affinity between their secular systems of government and the sacred figure of justice. Indeed in Europe and the United States, men and women who sit on the courts, particularly the higher courts have been called ‘justices’.

In the modern age, science and philosophy have moved from the idea that status or fate prescribes what we are to the idea that it is contract or choice that determines our destiny. But as we move from what Professor Phillip Bobbit⁵ has described as the ‘nation state’ to the ‘market state’, the role of those who interpret our choices and contracts moves to centre stage. So we move from the ancient High Priest to the human rights Judge.

What then is the role of a judge in a human rights world? That is the topic of this lecture, and one that I hope to answer thorough a discussion of various themes.

Let me start by saying that in an age of human rights, officers of the bench are provided an expanded potential to do justice. Lord Bingham while still Master of the Rolls⁶, suggested that the road map for judges wishing to achieve justice starts with the judicial oath, whereby a newly-appointed judge swears to:

‘do right to all manner of people after the laws and usages of his realm, without fear or favour, affection or ill-will.’

‘First, the judge must do what he (or, of course, she) holds to be right … But secondly, and vitally, he must do right according to the laws and usages of the realm. He is not a free agent, who can properly give vent to his own whims and predilections, or even (save within very narrow limits) give effect to his own schemes of law reform … Thirdly, the judicial oath makes clear … that in administering the law the judge must act with complete independence, seeking neither to curry favour nor to avoid any form of vindication. And fourthly, so far as humanly possible, judges must decide cases with total objectivity, having no personal interest beyond that of reaching a just and legally correct solution.’⁷

‘[j]ust as the common law has been evolving with increasing rapidity, so has the role of the common law judge. The judge’s responsibility for delivering justice is no longer largely confined to presiding over a trial and acting as arbiter between the conflicting positions of the claimant and the defendant or the prosecution and defence.’⁸

‘[t]he role of the judiciary, individually and collectively, is to be proactive in the delivery of justice. To take on new responsibilities, so as to contribute to the quality of justice’.⁹

‘In countries which practice a democratic form of government, the judiciary has been looked upon as the defender of any encroachment to the rule of law’.¹⁰

Of course, these statements take on a particular meaning when one considers the modern advance in human rights. For those states that have their own binding human rights bills or that allow regard to be had in judicial decision-making to international or regional human rights standards, there is a potential for judges to look beyond the remit of the common law to universal notions of justice embodied in the idea of fundamental rights. This potential is of undoubted importance for the citizens who are the direct beneficiaries of these rights.

I can speak from my own experience here. As you may know the United Kingdom has recently taken steps to ‘bring human rights home’ through its Human Rights Act. These fundamental rights extend from the right to life to the right to marry; from the right not to be subjected to inhuman or degrading treatment to the right to a fair trial; from the right to free speech to the right of privacy: to name but a few. While Britain was very much involved in the drafting of the European Convention on Human Rights and was one of the first countries to sign it, up until five years ago, a British citizen simply could not stand before a British court and assert that his or her fundamental rights under the Convention had been violated. That was not an available option, for although Britain had signed the Convention, it had no direct force of law. The only use that could be made of the Convention in Britain was to refer to it as an aid in deciding the meaning of ambiguous British legislation. Quite incredibly, we had to leave our shores and travel to Strasbourg to the European Court to seek protection of our Convention rights. And even if then, after that long and expensive road, the European Court agreed that British laws were incompatible with fundamental rights and freedoms, there was no legal obligation on our government to change them. That this was wrong is well evidenced by the fact that as a result of the many journeys our citizens made to Strasbourg, the European Court had held the United Kingdom to be in violation of its Convention obligations on over 50 occasions.¹¹

Under the UK’s Human Rights Act this historical justice deficit has been corrected by an invigorated potential for judges to do right by reference, domestically, to standards respected globally. Now, because of the Human Rights Act, British citizens, like citizens in almost every other European country, can rely on their Convention rights in their own Courts, before their own judges, and with the knowledge that their country has committed itself to the fulfillment of the highest ideals of human rights.

I am therefore heartened that Britain has joined the ranks of other constitutional democracies in Europe, the Commonwealth, and beyond. This is an important trend. For some time now international lawyers have been talking about an emerging norm of democratic governance. This norm of democratic governance has as its focus periodic multiparty elections, within the framework of institutions which guarantee respect for the rule of law and safeguard civil rights. Of importance is that increasingly the trend is towards democracies which guarantee respect for the rule of law and rights through domestic, constitutional charters. Through these constitutional instruments states are able to drive for a form of democratic politics that Susan Marks has called “inclusive democracy”¹², a value-driven from of democracy that has strong similarities with the recent thinking in political studies about what has become known as “good governance”.

What about the judiciary within this vision of an inclusive democracy? In a human rights world, what role should the ‘justices’ play in the pursuit of true democracy? I think it is clear that the responsibility for a value-based, substantive commitment to democracy rests in large part on judges. The importance of the judiciary in this context is that judges in constitutional democracies are set aside as the guardians of individual rights. Their supervisory role becomes intimately tied up with ensuring and enhancing a democracy that is participatory, inclusive and open.

This ability to do justice for all individuals – including the worst and weakest in a society – is then an inherent aspect of the judiciary’s institutional role in a constitutional democracy. In an age of human rights, the difference of course is that judges are afforded the opportunity and duty to do justice for all citizens by reliance on universal standards of decency and humaneness.

However, for all its emancipatory potential, this institutional role for judges comes with its own problems which must be confronted. I will touch briefly on two such problems; first, the problem of interpreting a text that contains commitments to universal human rights ideals expressed in broad and open-ended terms; and second, the counter-majoritarian problem – the problem of unelected judges overturning laws drafted by elected officials, through reliance on constitutional rights.

Beginning then with the challenge of interpretation. The special institutional role of judges in a constitutional democracy demands of them that they interpret their constitutional document in a way that eschews formalism and literalism. Your Royal Highness put it this way in a judgment in 1981.¹³

‘In interpreting a constitution two points must be borne in mind. First, judicial precedent plays a lesser part than is normal in matters of ordinary statutory interpretation. Secondly, a constitution, being a living piece of legislation, its provisions must be construed broadly and not in a pedantic way – “with less rigidity and more generosity than other Acts.’

For judges schooled in the tradition of narrow linguistic interpretation of laws (and there are many of them), this often poses a problem. That is not least of all because constitutional disputes can seldom be resolved with reference to the literal meaning of the constitution’s provisions alone. Constitutional documents do not fall from the sky in neat and digestible form. Nor are they holy Writ. Rather, many of a constitution’s provisions are the result of political compromises made during the drafting process. And where the document entrenches human rights the text will invariably speak to the attainment of universal and eternal standards, rather than laying down technical and easily discernable rules. Whether one reads the Constitutions of America, Malaysia or India, or regional instruments such as the European Convention on Human Rights, one is struck by the general and abstract terms in which the rights are formulated. Their application to particular situations and particular circumstances will necessarily be a matter for argument and controversy.

For some judges the controversy can be resolved or avoided by seeking to uncover the ‘original intent’ of the Founding Fathers (there were few Founding Mothers involved in drafting early bills of rights like that of the US Constitution!). In the United States the staunchest defender of this originalist interpretation is Supreme Court Justice Antonin Scalia. Already in the US there is much debate about who will be appointed to replace Justice Sandra Day O’Connor following the announcement of her forthcoming retirement from the US Supreme Court. One view – apparently endorsed by President Bush¹⁴ - is that preference should be given to a judge who is committed to constitutional interpretation by faithful reference to the text’s original meaning.

I think it is fair to say that such an interpretative stance is suspect when considered against the very idea of a constitutional document. Such a document is intended to articulate the most basic ideals of our humanity, ideals which are not static – trapped and rarefied in some bygone era¹⁵ – but rather ideals which are often only unearthed or polished or refined as we with time stumble and struggle towards their full realisation. For this and other reasons many of Justice Scalia’s colleagues on the Supreme Court disagree with him about the proper approach to constitutional interpretation. The disagreement is well captured in the reasons expressed by Justice Kennedy for deciding in June 2003 that the Equal Protection and Due Process clauses of the Constitution outlawed a Texas statute criminalising private adult, consensual homosexual conduct. In contrast to Scalia’s originalist understanding of the Constitution which would have allowed the law to remain on the statute books, Justice Stevens wrote this for the majority:

‘Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.’¹⁶

To similar effect is the finding by Chief Justice Mahomed of the Namibian Supreme Court in a case which outlawed corporal punishment by organs of state as cruel and inhuman¹⁷. To him constitutional interpretation involves a

‘value judgment which requires objectively to be articulated and identified, regard being had to the contemporary norms, aspirations, expectations and sensitivities of the Namibian people as expressed in its national institution and its Constitution, and further having regard to the emerging consensus of values in a civilized international community.’¹⁸

To Chief Justice Mahomed this is not a ‘static exercise’. Rather it is a ‘continually evolving dynamic’.

The approach of Justices Stevens and Mahomed - what some refer to as value-based or purposive interpretation – has increasingly come to be accepted as the most appropriate means of discerning a Constitution’s true meaning. In my own country leading British Law Lords have rejected the strict legalistic approach as an inadequate means for the interpretation in particular of human rights norms. Lord Steyn for instance has spoken against formalistic approaches to legal reasoning¹⁹ and argues that judges must be open about all factors, including moral and ethical principles, that influence their judgments and acknowledge that different judicial answers are always possible²⁰. Importantly, to Lord Steyn interpretation is never merely a question of looking for the ordinary meaning of discrete words, nor is interpretation limited to cases where a text is ambiguous²¹. Statutes should rather be purposively interpreted as if they are speaking in the ‘present tense’ or are ‘always speaking’ rather than being limited to the historical context in which they first appeared²². This too is the view of leading constitutional courts such as the Supreme Court of Canada²³ and the South African Constitutional Court.

A failure to interpret a Constitution in this broad and purposive manner means not only that citizens are denied the fullest enjoyment of their rights under law. In addition, a sterile, backward-looking approach to constitutional interpretation puts the entire constitutional project at risk. At Justice Kirby, a leading human rights judge from Australia so eloquently reminds us:

‘Construing a constitution with a catchcry about “legalism”, with nothing more than judicial case books and a dictionary to help, and with no concept of the way it is intended to operate in the nation whose people accept it has their basic law, is a contemptible idea. As one anonymous sage once put it: if you construe a constitution like a last will and testament, that is what it will become.’²⁴

Of course, the primary criticism of such a value-based or purposive approach to constitutional interpretation is the potential it holds for judges to impose their own values of what is moral, socially beneficial or politically correct. And that leads me to highlight the second problem posed by the institutional role afforded judges in a constitutional democracy. That problem – the counter-majoritarian dilemma – has been described by one academic as follows:

‘Constitutional review is conducted by unelected judges who are empowered to overturn the will of democratically elected and accountable legislature in terms of a process of interpreting abstract constitutional provisions. In short, the question arises as to how to account for and justify the curtailment of the operation of a democratic political system by an unaccountable institution.’²⁵

Or as Your Highness pithily put it in 1984:

‘just as politicians ought not to be judges, so too judges ought not to be politicians’.²⁶

Those critics who are wary of the power of judges perceive the essence of the problem to be a subversion of democracy. Democracy, as it is commonly perceived, entails that political power should be disposed of by the people. When unelected judges take over the democratic role, a possible legitimacy problem emerges. What increases the tension is that in today’s human rights age, judges exercise the power of judicial review by recourse to value-laden, often imprecisely worded and invariably loftily expressed constitutional rights.

An obvious riposte to critics of judicial review is to point out that the power of judicial review is accorded to judges by ‘the people’ through present day constitutional arrangements.²⁷ Chief Justice Beverley McLachlin's comments with regard to the Canadian Supreme Court are therefore equally apposite for other constitutional courts. She has said that:

‘The fact is that the Constitution, not the judges, compels the courts to act as final arbiters of what is right and just, to stand as the guardians of the Constitution. While the courts may choose between relative degrees of judicial activism, and while the extent to which they defer to the legislative branch may vary, the fundamental fact remains that the courts cannot avoid the new responsibilities and powers which the Charter has placed upon them. The question is not whether they do it, but how they do it.’²⁸

Nonetheless, I would suggest that in order to keep the counter-majoritarian problem in check it behoves judges to keep in mind certain basic points if they are to avoid a legitimacy problem.

The first is that as much as human rights principles might drive a judge to conclude that a rule of the common law or a provision in a statute breaches a fundamental constitutional guarantee, judges must bear in mind, as Justice Kirby reminds them, that ‘one settled human rights principle is addressed to the judiciary itself’.²⁹ That principle is encapsulated in Article 14 of the International Covenant on Civil and Political Rights, which requires not only that judges should be competent and independent, but also that they should be impartial in the discharge of their duties. In the context of the awesome power of judges to act in counter-majoritian way, the principle of impartiality

‘helps to remind judges that they have no rights, as an elected legislator may, to pursue an agenda that they conceive to be in the interest of society. They are adjudicators. They must approach the resolutions of the parties’ dispute without partiality towards either side. Nor must they be obedient to external interest.’³⁰

That is so whether the outside interest can be classified as political, cultural or religious.

Aside from impartiality, judges have a duty, as Lord Steyn has put it, ‘of reaching through reasoned debate the best attainable judgments in accordance with justice and law’.³¹

This may seem an obvious point, but one that is often overlooked. In cases where judges overturn the laws of democratically elected officials their decisions often have a ripple effect through society. That is because a decision, for instance, to strike down a statute that allows the death penalty, or to overturn a law - like Texas statute I spoke of earlier- that proscribes punishment for sexual relations between homosexuals, is to act against sometimes overwhelming public support for such laws. All the more reason then for judges to engage critically and openly with the public’s opinion and to explain why they refuse to be led by it. Critical scrutiny of the public’s morality might reveal that the public's opinion is swayed by information which is false, fraught with prejudice, or mired in sentiment. In response, judges in a human rights age have the opportunity and responsibility to openly explain why such views are incorrect.

The type of persuasion that courts might employ can usefully, be explained by what John Rawls calls ‘public reason’. Rawls discusses public reason as a method of argument – a discourse of persuasion - and argues that people should engage in debate by using method of reasoning which ‘rest(s) on the plain truths now widely accepted, or available, to citizens generally’.³² This public reason is peculiarly suited to the Court’s work in a constitutional democracy. As Rawls has said,

‘the court’s role is…. to give due and continuing effect to public reason by serving as its institutional exemplar’.³³

While ordinary citizens and legislators are entitled to vote and debate on the strength of reasons that are not always public, the court has only public reason to rely on. Unlike citizens and legislators who may be influenced by majoritarian pulls and pushes, judges must ‘justify by public reason why they [decide] as they do' and 'make their grounds consistent and fit them into a coherent constitutional view over the whole range of their decisions.’³⁴

This then brings me back to democracy. Contrary to the sceptics of judicial review who believe that such a power frustrates the will of the people, it will already be clear that I am of the view that judicial review is a vital ingredient for the attainment of true, inclusive democracy.

For one thing, a purposive or value-laden theory of constitutional interpretation is built on the idea of a novel institutional role for the judiciary. Its proponents acknowledge the counter-majoritarian nature of judicial review, but argue that such an institutional role is a prerequisite for the protection of individual rights. The counter-majoritarian difficulty is then not so much a problem, as it is a tool for true democracy. The courts, insulated from the populist strains of the political process are now the guardians of principle. While the collective welfare of the community is best left to the people to decide via a majoritarian legislature, rights against such a collective welfare are best determined by the judges who are insulated from the demands of the political majority whose interests would override minority rights. Epitomising this view, former Chief Justice Chaskalson, in the judgment of the South African Constitutional Court which struck down the death penalty as unconstitutional, had the following to say about public opinion:

‘Public opinion may have some relevance to this inquiry, but in itself, it is no substitute for the duty vested in the courts to interpret the constitution and to uphold its provisions without fear or favour. If public opinion were to be decisive there would be no need for constitutional adjudication …The very reason for establishing the new legal order, and for vesting the power of judicial review of all legislation in the courts, was to protect the rights of minorities and others who cannot protect their rights adequately through the democratic process.’

This institutional role ensures that courts develop what Dworkin calls a ‘Constitution of Principle’.³⁵ Such a constitution of principle, enforced by independent judges, is not undemocratic. On the contrary, it is a precondition of legitimate democracy that government is required to treat individual citizens as equals and to respect their fundamental liberties and dignity.

Nowhere has the importance of independent judges policing a constitution of principle become clearer than in the context of the ongoing threat and reality of terrorism. I say this in the same month that London has experienced the consequences of a series of bomb blasts killing many innocent civilians, and maiming many others. Nothing I say here could possibly be construed as making light of these horrific acts of violence, or of the responsibility imposed on the UK’s and other governments to keep the public safe, or of the difficult and dangerous task performed by the police and intelligence services. At the same time, it is all too easy for us to respond to such terror in a way which undermines commitment to our most deeply held values and convictions and which cheapens our right to call ourselves a civilised nation. Were it otherwise, it would not have been necessary for the Islamic Human Rights Commission to have reportedly warned London Muslims after the attack to stay at home for fear of reprisals.³⁶ The choice of options in response belongs to the executive or legislature. But these choices too are not unbridled. As the President of the Supreme Court of Israel has put it,

‘[t]he court’s role, is to ensure the constitutionality and legality of the fight against terrorism. It must ensure that the war against terrorism is conducted within the framework of the law’.³⁷

There is an obvious conflict that arises between the need for national security and human rights. Recently the House of Lords in its decision in A v Secretary of State for the Home Department³⁸ has come to grapple with this conflict when faced with a challenge to indefinite detention of foreigners at Belmarsh prison, but not nationals, under the UK’s Anti-terrorism, Crime and Security Act of 2001. The House ruled that such detention was a breach of the European Convention on Human Rights. It is a landmark decision, described by Lady Justice Arden³⁹ as a

‘decision that will be used as a point of reference by courts all over the world for decades to come,⁴⁰ even when the age of terrorism has passed. It is a powerful statement by the highest court in the land of what it means to live in a society where the executive is subject to the rule of 1aw.’

What the A case makes clear is that the government, even in times when there is a threat to national security, must act strictly in accordance with the law.

I should add that the reaction of the general public to the decision in the A case has not been uniformly favourable.

Of course the public in this respect failed to appreciate that the outcome of the case was not driven by what the judges thought or felt about the appropriate reaction to a terrorist threat, but rather what the European Convention demands. I am accordingly in full agreement with Lady Justice Arden when she says that the decision in the A case should not be misinterpreted as a transfer of power from the executive to the judiciary. The position is that the judiciary now has the important task of reviewing executive action against the benchmark of human rights. Thus, the transfer of power is not to the judiciary but to the individual.

To my mind what A case further demonstrates is the potential for judges to educate the public about the real meaning of democracy. In this age of human rights, constitutional courts the world over have found themselves cast as educators in a national forum. With each and every contentious matter that these courts hear, judges are forced to grapple with opinions held by the public, often exemplified in parliamentary legislation subject to constitutional challenge. Judges are forced in their judgments to respond in a way that teaches citizens and government about the ethical responsibilities of being participants in a true democracy committed to universal human rights standards. This is so even when - one might say particularly when a nation - is confronted by the threat of terrorism. A judge's decision becomes then the vehicle by which one arm of the government reminds citizens of what it means to live in a democratic society. In the A case Lord Bingham powerfully addressed this issue in the following passage:

‘I do not accept the distinction which [the Attorney General] drew between democratic institutions and the courts. It is of course true that the judges in this country are not elected and are not answerable to Parliament. It is also of course true that Parliament, the executive and the courts have different functions. But the function of independent judges charged to interpret and apply the law is universally recognised as a cardinal feature of the modern democratic state, a cornerstone of the rule of law itself. The Attorney General is fully entitled to insist on the proper limits of judicial authority, but he is wrong to stigmatise judicial decision-making as in some way undemocratic. It is particularly inappropriate in a case such as the present in which Parliament has expressly legislated in section 6 of the 1998 [Human Rights] Act to render unlawful any act of a public authority, including a court, incompatible with a Convention right … The 1998 Act gives the courts a very specific, wholly democratic mandate …’⁴¹

This process, I would suggest, is democracy affirming, rather than democracy limiting.

Dworkin argues that a government where citizens actively debate the principled issues of the day would be better realised when final decisions involving constitutional matters are removed from ordinary politics and left to the courts.⁴² That is because ordinary politics generally prevent any reasoned argument from occurring, since such politics are usually aimed at political compromise between the most powerful groups. However, when an important constitutional issue has been decided by the Supreme Court, the debate around that issue is then forced to deal with the reasoned judgment of the court, and better achieves that vision of a government in which all citizens have a chance to engage in the 'common venture' of public debate.⁴³

In contrast therefore to the depiction of a constitutional court as a 'deviant institution'⁴⁴ by those who are fearful of its counter-majoritarian tendencies, it becomes more appealing to understand the court as a 'democratic institution'.⁴⁵ Its democratic potential lies not only in its guardian role of ensuring that a government

‘show equal concern for the fate of all those citizens over whom it claims dominion and from whom it claims allegiance’.⁴⁶

It lies also in the vital and complementary role that judges can play in engaging with national issues so as to create a public dialogue about the core human rights values that lie at the heart of all inclusive, open democracies. In our troubled times, where terrorism, division and suspicion of others are the order of the day, this role for judges is perhaps more vital than ever before.

In an age of human rights, the process of judging which I have been speaking about thus far is no longer one to be undertaken by national judiciaries in isolation. Today we can see the extent to which judging is now an international business. While reference to foreign and international law in US cases may still be somewhat rare and controversial, the fact is, as Anne Marie Slaughter has pointed out, there is a growing trend towards cross-constitutional discussion and learning with judges in Israel inspecting Canadian precedents on minority rights cases, and judges in the South African Constitutional Court studying German cases to interpret social and economic rights claims.⁴⁷ In the United Kingdom, both during the period of semi-incorporation of the European Convention of Human Rights before the Human Rights Act was passed and now most certainly after the Human Rights Act came into force, British lawyers and judges have looked to foreign and international law for guidance in human rights cases. That is not surprising when one connects, as does Lord Steyn, constitutional reform in the UK to the constitutional 'renaissance' throughout the Commonwealth.⁴⁸

There is an increased sophistication in and acceptance of what Canadian Supreme Court Justice Madam L’Hereux-Dube has called 'dialogue': the practice of citing, analysing, relying on, or distinguishing the decisions of foreign and supranational tribunals.⁴⁹ Whereas the earlier practice was one of 'reception' - newly created constitutional courts applying the reasoning of older tribunals, particularly British and Americans courts - Justice L'Hereux-Dube highlights that today judges live and practise a new trend in which courts look to a ‘broad spectrum of sources' and 'mutually read and discuss, each other’s 'jurisprudence’ in a transcultural constitutional dialogue.⁵⁰ In equal vein, Lord Goff of Chieveley has warned that

‘[c]omparative law may have been the hobby of yesterday, but it is destined to become the science of tomorrow. We must welcome, rather than fear its influence.’⁵¹

This 'science of tomorrow' is an important one, no doubt. It is important for all justices who preside over superior courts. As Mark Tushnet, a leading American constitutional scholar puts it, thinking about, and drawing from, the constitutional experience of other courts ‘can be part of the ordinary liberal education of thoughtful lawyers’.⁵² After all ‘if one believes that constitutional interpretation is the application of reason to problems of governance within a framework set out in the Constitution's words, experience elsewhere is relevant because it provides information that an interpreter committed to reason might find helpful.’⁵³

To believe otherwise is to cling to the implausible notion that a judge cannot expand his or her awareness and knowledge by drawing on other sources and experiences. Surely the importance of comparative constitutional lawyering - whether one is an American, British, or Malaysian judge - is its potential to act as

‘a counter to the natural, parochial tendencies of national constitutional theory method law?’⁵⁴

The fact of the matter is that the international nature of constitutionalised human rights means that domestic judges are engaged in a common exercise. Even as they seek solutions to local problems, they do so by drawing on an increasingly interconnected global set of standards, and by considering the experience of others who have faced similar issues.

I return again to the problem of terrorism. While each of the world's nations have localised responsibilities to their citizens to act against terrorism, the experience of others who face similar threats and have considered appropriate responses is of obvious importance. For instance, the House of Lords in the A case appears to have drawn inspiration from the findings of the Israeli Supreme Court which has developed a unique jurisprudence on the judicial approach to counter-terrorism laws. President Barak has given many judgments on this issue. One discerns a close parallel in thinking between the House of Lords in A case and the ticking bomb case, in which President Barak said:

‘We conclude this judgment by revisiting the harsh reality in which Israel finds itself.... We are aware that this decision does not make it easier to deal with that reality. This is the fate of democracy, as not all means are acceptable to it, and not all methods employed by its enemies are always open before it. Sometimes, democracy must fight with one hand tied behind its back. Nonetheless, is has the upper hand. Preserving the rule of law and recognition of individual liberties constitute an important component of its understanding of security. At the end of the day, they strengthen its spirit and this strength allows it to overcome its difficulties.’

I venture to suggest that such comparative learning is vital to democracies around the world. Our problems are not unconnected and our democratic aspirations are not dissimilar. As Justice Kirby of the Australian High Court has pointed out in his book Through the World's Eye, while we once may have seen ‘issues and problems through the prism of a village or a nation-state, especially if we were lawyers.’ Today, in an age of human rights, ‘we see the challenges of our time through the world's eye.’⁵⁵

It has come time now for me to conclude. Although there are many that through their actions diminish the claim, I think it is important for us to stress that we do live in an age of human rights; in a human rights world. As my Matrix colleague Rabinder Singh QC has said:

‘Since World War Two, in particular, the age-old problem of whether there are human rights and where they come from - whether from pure reason, natural law, divine origin or universal custom - has been largely avoided, if not resolved, by the social fact that the international community has come to accept a set of principles as being of global application’.⁵⁶

This age brings with it huge potential for justices of the world's highest courts to speak a common language. Independent judges providing purposive interpretations of their country's most fundamental rights are an important component of any true democracy. As judges embark on constitutional interpretation they are afforded the chance to narrate the values that underpin the very essence of our humanity. This is not only a democratic role played by courts that act as guardians of the weakest, poorest, and most marginalised members of society against the hurly-burly of majoritarian politics. It is also a chance for judges to play a vital role as teachers in a national seminar on the topic of meaningful, inclusive democracy in the twenty-first century. In this role, the rhetorical possibility exists for judgments to draw upon relevant comparative and international rights experience to paint enriched and enriching tapestries of our common human rights and international law commitments.

We live in challenging times. Our institutions are under threat; our commitments to our deepest values are under pressure; our acceptance of difference and others is at a low point. It is at this time that our understanding of the importance of judges in a human rights age should be at its clearest. And it is at this time that our support for the difficult task that judges have to perform must be at its highest.

Thank you.