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Sunday Times STLive By Arthur Chaskalson , 2012-01-29

When law irks power

Politicians who resent being reined in by the courts should weigh their fury against the constitution, retired Chief Justice Arthur Chaskalson told a law workshop at the University of Cape Town this week. This is an edited extract

It is probably inevitable that there should be tension between judges and politicians in South Africa, where the constitution entrenches the rule of law, and provides for an independent judiciary, and judicial review of legislative and executive action.

This is inherent in the separation of powers and is not solely a South African phenomenon. A former Chief justice of Australia, Chief Justice [Murray] Gleeson, explained it in these terms:

"As the guardian of the constitution, the high court from time to time disappoints the ambitions of legislators and governments. This is part of our system of checks and balances. People who exercise political power, and claim to represent the will of the people, do not like being checked or balanced."

Lord Bingham, one of the great common-law judges of our generation, refers to "an inevitable" and "entirely proper tension between the government and the judiciary". While not necessarily desirable, such tension should not come as a surprise. It is evidence that we have an independent and not a compliant judiciary. The executive has no doubt been frustrated by a number of high-profile cases that it has lost before the courts, and this may be the reason for complaints by political leaders about the judiciary. Unsuccessful litigants are inclined to blame the court rather than themselves and politicians are no exception to this.

There may be particular cases where judges have done or refrained from doing something that legitimately attracts the displeasure of the executive. Usually such matters can be corrected, but even if that is not possible, this does not warrant an attack on the judiciary as an institution. Such attacks, coming from senior politicians, undermine the constitutional order and pose a threat to our democracy.

The canard raised by critics is that the constitution is a bar to transformation, and that essential change is being hampered by an untransformed judiciary. These are serious allegations which, if asserted, deserve to be debated.

Judges are the only judicial officers with the power to enquire into the validity of an act of parliament or the conduct of the president. It is their decisions that shape the law, and are relevant to the charge that transformation is being obstructed by the judiciary.

The preamble to the constitution records that it was adopted to:

  • Heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights;
  • Lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law;
  • Improve the quality of life of all citizens and free the potential of each person; and
  • Build a united and democratic South Africa able to take its rightful place as a sovereign state in the family of nations.

This is a clear commitment to transform our society. It calls for positive action to confront the apartheid legacy of poverty and dis-empowerment, and for building a truly nonracial society committed to social justice. Transformation contemplates an improvement in the lives of people, households and communities, achieved over time by institutionalising policies, programmes and projects to that end. The arms of government primarily responsible for this are the legislature and the executive.

Judges hold office under the constitution. They are required "to uphold and protect the constitution and the human rights entrenched in it, [and to] administer justice to all persons alike without fear, favour or prejudice, in accordance with the constitution and the law". On assuming office they commit themselves to doing so.

The complaint about lack of transformation is sometimes directed at the retention of power by those who held it under apartheid. That charge cannot be made against the leadership of the judiciary. The chief justice, the deputy chief justice, the president of the Supreme Court of Appeal, the deputy president of the Supreme Court of Appeal and all the judges president of the high court are black; none held office under apartheid; all were appointed under the present constitution.

That charge can also not be made against the judges of the Constitutional Court, which is the highest court in the land and the guardian of the constitution. Chief Justice Mogoeng Mogoeng was a judge of the Constitutional Court when he was appointed as chief justice after the retirement of Chief Justice Sandile Ngcobo. The vacancy caused by the retirement of Chief Justice Ngcobo has not yet been filled; before his resignation, eight of the 11 judges of the Constitutional Court were black.

Since 1994, as required by the constitution, judges have been appointed by the president on the advice of the Judicial Service Commission. Of the 23 permanent members of the Judicial Service Commission, only three are judges - the chief justice, the president of the Supreme Court of Appeal and one judge president. Fifteen (the majority) are nominees of parliament and the executive, four are nominees of the profession, and one of the deans of law schools. From its very beginning its policy has been to promote transformation, both in regard to race and gender, and in regard to the values of the constitution.

Comparatively few judges from the apartheid era still hold office. In all, 134 judges, about 60% of the judiciary, are black. There is a legitimate issue concerning the underrepresentation of female judges - only about 25% of all judges, and only two of the 11 judges of the Constitutional Court, are women. That needs to be addressed; but it is not the focus of the attack levelled by those who call the judiciary untransformed. Implicit in the attack is that the judges are a holdover from apartheid and out of tune with the values of the constitution. The judiciary as an institution is quite clearly not a holdover from apartheid.

Is it out of tune with the values of the constitution?

The apex in our court system is the Constitutional Court. All other courts and organs of state are bound by its decisions.

In one of the earliest judgments given in 1995, in a much-quoted passage, [the then Justice] IsmailMahomed said:

"The South African constitution . . . retains from the past only what is defensible and represents a decisive break from, and a ringing rejection of, that part of the past which is disgracefully racist, authoritarian, insular, and repressive, and a vigorous identification of and commitment to a democratic, universalistic, caring and aspirationally egalitarian ethos, expressly articulated in the constitution. The contrast between the past which it repudiates and the future to which it seeks to commit the nation is stark and dramatic."

In the same case Justice Kate O'Regan referred to the founding values of the constitution - human dignity, the achievement of equality, the advancement of human rights and freedoms, including nonsexism and nonracism, and respect for certain of the fundamental principles of democracy - the rule of law; universal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government to ensure accountability, responsiveness and openness. She said: "The values urged upon the court are not those that have informed our past. Our history is one of repression not freedom, oligarchy not democracy, apartheid and prejudice not equality, clandestine not open government."

In 1998, addressing the socioeconomic rights in the constitution, the court said: "We live in a society in which there are great disparities in wealth. Millions of people are living in deplorable conditions and in great poverty. There is a high level of unemployment, inadequate social security, and many do not have access to clean water or to adequate health services. These conditions already existed when the constitution was adopted and a commitment to address them, and to transform our society into one in which there will be human dignity, freedom and equality, lies at the heart of our new constitutional order. "

In 2000, dealing with access to housing, the court said: "A society must seek to ensure that the basic necessities of life are provided to all if it is to be a society based on human dignity, freedom and equality."

In the same year it said: "The process of interpreting the constitution must recognise the context in which we find ourselves and the constitution's goal of a society based on democratic values, social justice and fundamental human rights. This spirit of transition and transformation characterises the constitutional enterprise as a whole."

In 2004, citing five of its previous decisions, the Constitutional Court, dealing with what it described as restitutional equality, said: "... the achievement of equality is not only a guaranteed and justiciable right in our bill of rights but also a core and foundational value; a standard which must inform all law and against which all law must be tested for constitutional consonance".

In a judgment last year, the c ourt again drew attention to the centrality of the constitutional commitment to social justice, to the fact that millions of people were still compelled to live without adequate housing, and to the concern that "17 years into our democracy, a dignified existence for all in South Africa has not yet been achieved".

This lack of transformation has not been due to decisions of the courts.

Voices are sometimes heard criticising the constitution itself as being an obstacle to transformation. George Bizos refers to one such assertion by a prominent member of the ANC, that "power was systematically taken out of the legislature and the executive to curtail efforts and initiatives aimed at inducing fundamental changes. In this way, elections would be regular rituals handing empty victories to the ruling party."

This is in stark contrast to the claim made in the recent January 8 statement by the ANC marking its 100th anniversary: "The ANC played a leading role in shaping the nature, form, process and content of Codesa and its outcome."

The preamble and the founding values of the constitution assert human dignity, the achievement of equality, and the advancement of human rights and freedoms.

These were not values forced on those who negotiated the constitution on behalf of the ANC; nor was an entrenched bill of rights. They were demands made by the ANC which had been enshrined in the Harare Declaration of 1989.

Do those who blame the constitution for lack of transformation want a legal order in which human rights are not entrenched, and parliament is supreme, where, as a former South African chief justice of those times observed in 1934: "Parliament may make any encroachment it chooses upon the life, liberty, or property of any individual subject to its sway . . . and it is the function of the courts of law to enforce its will."

If this is what they want, they should say so.