Mandla Seleoane: Two weeks ago, Professor Ziyad Motala wrote a critique of the Constitutional Court judgment in the Glenister case in the Sunday Times Review. Last Sunday, Professor Kader Asmal wrote a rejoinder. As is the case with academic debate, it is hard to find a person you agree with completely.

The thrust of Motala's argument was that the court is inconsistent in its approach to international law (it previously held that international law was part of our law only if incorporated in a statute; in the Glenister case, it took the opposite view) and the judgment is incompatible with the rule of law (it comes down to judges usurping parliament's power).

He also bemoaned the court's reference to "informed public opinion", arguing that if public opinion had judicial relevance, it would have been impossible to outlaw capital punishment in South Africa.

I read Justices Dikgang Moseneke and Edwin Cameron differently. They cited international law on the independence of agencies that combat corruption and organised crime, and then stated on page 103: "This is not to incorporate international agreements into our constitution. It is to be faithful to the constitution itself .. .."

They, like Chief Justice Sandile Ngcobo, stated quite clearly that international law instruments are part of our law only if they are incorporated in our legislation.

However, it is possible to argue that the court could have arrived at similar positions in previous cases which Motala referred to.

Sadly, that was not his argument. He argued instead that there is no international jurisprudence in support of the position the court has taken on the independence of agencies that fight corruption and organised crime. I have not been able to see the conceptual difficulty about our court making a ruling for which there might be no precedent. After all, that is exactly how precedents are established: a brave judge makes a decision others have shied away from.

On the judgment usurping the legislature's role, I think Motala must justify himself, against the background that the court ruled that parliament must itself remedy the defect in the statute impugned. It could straight away have declared the statute invalid, but it did not.

Motala must also explain whether he supports the testing power of courts. If he does, he must appreciate that when courts declare laws invalid, they are doing their job; it's not usurpation.

Regarding the question whether the court should have assigned significance to what informed members of the public understand by the term "independent", I don't think lawyers or judges have a monopoly of determining the meaning of words. I would not quarrel with them preserving for themselves the monopoly to determine the meaning of laws.

In fact, I think the rule of interpretation that requires lawyers to first and foremost assign to words their dictionary meaning recognises precisely the disposition I am arguing.

If the court said the Hawks were as independent of the executive as the Scorpions were, when most intelligent people held the opposite view, its integrity would be compromised considerably.

What about Asmal? He found Motala's arguments simplistic and inattentive to the clear language of our constitution that "might is not right". He said they implied "that the government can do what it likes" and that they betrayed Motala's "executive blinkers".

I found myself in the difficult position where I agreed with his conclusion on the correctness of the judgment, but was at odds with the manner in which he arrived there.

I don't think Motala's arguments are simplistic. If they were, the court would not have ruled the way it did with a majority of only one. There was nothing in Motala's article to support the contention that he thinks government can do what it pleases.

I have seen nothing in the article under review (or in his other writings) that could sustain the view argued by Asmal that he thinks might is right.

Asmal indicates that he chose to resign his cabinet post rather than be associated with the dissolution of the Scorpions. It is easy, therefore, to understand his impatience with the views argued by Motala. Sadly, this is not the first time I have got the sense that Asmal is likely to be uncharitable when positions he supports are assailed.

On August 25 2001, he chaired a disciplinary hearing involving 12 ANC councillors who had objected to Luthuli House imposing an executive mayor on Middelburg in Mpumalanga. Mathole Motshekga, their representative, had indicated in advance that he was unavailable on the day of the hearing. The councillors sent a letter to Luthuli House beforehand explaining this and asking for a postponement to a date on which Motshekga was available.

Asmal, nevertheless, proceeded to Middelburg and, although the councillors re-launched their application for a postponement, declined that and found them guilty.

They were expelled on the basis of his findings. These councillors would have expected Asmal, of all people, to uphold their constitutional right to representation, but he did not.

Back in 2001, it required a lot of courage to stand up to Luthuli House and oppose its impositions. Ten years later, many ANC branches throughout the country are questioning the tendency to impose leadership from above and ignore sentiments on the ground.

I have often wondered how Asmal lives with himself today when he considers the short shrift he subjected 12 of his comrades to - on a matter on which history has completely vindicated them a decade later.

For me, the lesson is clear: over-zealousness in protecting the things you support can be as corrosive of the constitutional values Asmal wants to defend as Motala's views might be, if Asmal comprehended them correctly.

• Seleoane is a social commentator