BRIAN MURRAY | Judges are under fire: it’s the state’s duty to support and protect them

In 1994 Kader Asmal delivered a lecture at Trinity College in Dublin, “The making of a constitution: the case of South Africa”.

He described the constitution as “a negotiated revolution of unique character”. Central to this was “the elevation of the constitution to the status of the supreme law of the land, with the concomitant substantial expansion of judicial power of constitutional review”.

Critical to that power of constitutional review was an elaborate description of the value of judicial independence.

Judicial independence as a legal and political concept is reactive in nature and origin. It exists only because the value it embodies has always been under threat. Throughout history, the popular press, political figures and indeed pamphleteers and essayists have been forthright in their assaults on court decisions. There is nothing wrong with that: Sachs J in The State vs Mamabolo said: “It is particularly important that, as the ultimate guardian of free speech, the judiciary show the greatest tolerance to criticism of its own functioning.”

However, the threats to judicial independence have evolved in nature and increased in intensity. At times of emergency and crisis, tensions between the executive branch on the one hand and the courts on the other are most amplified. From the events of 9/11 through to migration and Covid, the past quarter of a century has presented more than its fair share of global emergencies. Judges have found themselves adjudicating tense disputes in circumstances of heightened anxiety.

The nature of the attacks on the rule of law and on judicial independence in constitutional democracies, and the vectors through which they are delivered, feed off each other. Generally they derive from:

• direct attacks on the independence of the judiciary by governments;
• agitation against judges by populist political movements;
• increasingly aggressive and on occasion politically powerful individual litigants or groups of litigants;
• social media;
• the mainstream media;
• AI; and
• inadequacies in funding and institutional supports.

Each of these factors would, on its own, represent a significant challenge to the judiciary. But of particular concern is that they are all happening at the same time. We must devise strategies to meet them.

Social media ‘compresses the space between criticism and intimidation, and rewards heat rather than accuracy. It allows anonymous hostility to appear as public opinion’

—  Judge in the UK

Every definition and theory of the rule of law demands minimum standards for the fair and transparent resolution of civil and criminal disputes: chief justice Pius Langa, in President of the Republic of South Africa vs Modderklip, explained that the first aspect that flows from the rule of law is “the obligation of the state to provide the necessary mechanisms for citizens to resolve disputes that arise between them”. These, in turn, require that adjudication be undertaken by judges who are free from improper external pressures.

Four principles have developed under the general umbrella of judicial independence:

• security of tenure;
• financial security;
• the institutional independence of the judiciary; and
• the freedom of judges to perform their role without interference from the other branches of government.

These mandates are all reflected in the constitution. But it supplements them with some arresting, and important, innovations.

First, it contains an express injunction against interference with the functioning of the courts by any “person or organ of state”.

Second, it contains a critical affirmative obligation that judge Chris Jafta has called “the most important and fundamental duty imposed upon the state by the constitution ... Organs of state, through legislative and other measures, must assist and protect the courts to ensure [their] independence, impartiality, dignity, accessibility and effectiveness.”

Third, it regulates certain judicial appointments which, in Anglo-American jurisdictions, have traditionally been a matter for the executive.

Fourth, it establishes a Judicial Service Commission. Selection, appointment and disciplinary processes are afforded a crucial constitutional status.

But the real question is how these rules respond to real-world problems. The European experience is particularly telling, not merely as a warning, but because it demonstrates what courts can do when constitutional guarantees of judicial independence come under sustained pressure. In Hungary and Poland, judicial independence has been undermined by, for instance, changing the appointment processes for new judges. The changes prompted an English judge to observe: “The capture of the courts has begun, not with soldiers at the courtroom door, but with changes to the way judges were appointed, promoted, disciplined, retired or replaced.”

The systems of judicial appointment must operate in a way that engenders public confidence that only truly meritorious candidates are appointed to judicial positions

The European Network of Councils for the Judiciary reported in 2025 that 30% of the respondents to its survey of judges reported experiencing threats arising from their judicial work. Recent surveys of the South African judiciary disclose similar incidences of threats of physical attack on judges.

Social media, as one English judge crisply put it, “compresses the space between criticism and intimidation, and rewards heat rather than accuracy. It allows anonymous hostility to appear as public opinion.”

The solutions to many of these issues are obvious and some of them are expensive. But they are critical to the stability of the administration of justice, which is critical to the stability of our democracy.

The executive must provide courts with the resources they require to discharge their functions independently, effectively and securely. It must safeguard judges and court staff when they need protection. The state should institute and enforce regulatory measures that ensure that social media is not used to incite violence against or violate the privacy of judges or their families simply for doing their jobs. Laws of contempt of court must, while fully protective of free speech, be adequate to ensure that the judiciary can function in accordance with its constitutional mandate. Judges must have the power to control their courtrooms and must be able to guarantee their own safety and that of their staff.

When court orders are made, they must be enforced, and the executive must provide the means to ensure this. Politicians should exercise prudence when criticising judicial decisions. The systems of judicial appointment must operate in a way that engenders public confidence that only truly meritorious candidates are appointed to judicial positions.

The question is not simply whether judges are independent. It is whether the constitutional culture is strong enough to preserve judicial independence, to support its judges, when necessary, to accept their authority when their judgments are politically inconvenient, and to hold them properly accountable where they fall short of those standards.

This is an edited version of the Annual Kader Asmal Lecture, hosted by the Council for the Advancement of the South African Constitution, which he delivered in Johannesburg recently. For a longer version please go to: www.casac.org.za

• Murray is a graduate of the law school at Trinity College, Dublin, and the University of Cambridge. He is a judge of the Irish Supreme Court.