The right to remain silent following arrest is surely one of the world's bestknown legal doctrines, made ubiquitous by television crime shows and movies.

When the suspect is arrested, inevitably the detective will instruct a gritty cop to "read the scumbag his rights", at which point the cop will say in perfunctory fashion: "You have the right to remain silent. You have the right to an attorney," etc.

The right to remain silent has became established as a corollary to the right against self-incrimination. And the right against self-incrimination is itself a corollary to centuries of legal reform aimed at eradicating the bizarre medieval practice of torturing confessions out of suspects.

For human rights lawyers, section 28 of the National Prosecuting Authority Act constitutes a first step down a road that might ultimately lead to the dilution of the right against self-incrimination .

It does so by allowing the Scorpions to demand the presence of any person who will be required to answer questions under oath.

So far so good, but here is the crunch: the person involved cannot refuse to answer on the basis that the answers would expose him to a criminal charge. And not answering, or answering dishonestly, is itself a crime.

It is easy to see why, taken as a whole, the legislation is regarded somewhat suspiciously by human rights lawyers.

Consequently, the decision by Durban High Court Judge Ron McLaren last week in the arms deal case to uphold the statute despite his acknowledgement that it conflicts with certain provisions of the constitution came as something of a surprise.

Like the asset seizure legislation, it reflects support in the SA courts for legislation that might marginally shave some formal human rights, provided that is done in an effort to fight crime.

Human rights lawyers of high principle might argue this is the thin end of the wedge, but it does seem that the courts are so appalled by the level of crime in SA that they are prepared to countenance unconstitutional measures .

In supporting crime-fighting legislation, the courts appear to be relying on the safeguards built into the legislation itself. These safeguards limit the ambit of the legislation, and in section 28 the safeguard is that any evidence that emanates from the questioning cannot be used in criminal proceedings.

But this of course creates new grey areas, and it was exactly in one of these grey areas that the arms deal case fell.

In Durban businessman Schabir Shaik, the case involved a suspect, not somebody who had been arrested .

Nevertheless, McLaren found that even suspects do have the right to remain silent, and furthermore that the legislation indeed disregards the constitutional right to remain silent .

But he went on to deal with section 28 in terms of the "limitations clause" of the constitution. This clause is partly intended to assist in resolving conflicts between different rights, like that between the right to free speech and the right to human dignity, allowing hate speech to be constitutionally outlawed.

McLaren applied the section in a more literal way, suggesting the limitations clause might be a kind of sanction for limited deviations from constitutional rights in exceptional circumstances rather than merely an arbitrator between rights.

In McLaren's judgment, the fight against corruption is so destructive and hateful, that it justifies such a deviation.

He quotes, for example, political philosopher Edmund Burke saying: "Among a people generally corrupt, liberty cannot long exist."

Furthermore, McLaren also seems to suggest there are aspects of the crime of corruption itself that would justify the intrusion into the more general body of human rights, mentioning the "insidious nature of corruption".

McLaren is perhaps hinting about the unusual nature of corruption, in which both actors have an equal and intense interest in keeping their malfeasance quiet.

In corruption, there is often no immediately discernible victim in the first instance. There may be people who lost out, but for them it is about what might have been and not what actually happened.

Because of this feature of corruption, it is often difficult for the police to collect evidence, and this was clearly a motivating factor in McLaren coming to his judgment.

With acknowledgements to Tim Cohen and the Business Day.