Mogoeng puts judiciary in a bind
Chief justice Mogoeng Mogoeng’s proclivity for public speaking has put him and the judiciary in a bind after he seemed to publicly support Israel, contradicting SA’s official foreign policy on one of the most contested political issues in the world.
Chief justice Mogoeng Mogoeng’s proclivity for public speaking has put him and the judiciary in a bind after he seemed to publicly support Israel, contradicting SA’s official foreign policy on one of the most contested political issues in the world.
It caused such a stir that the ANC, in an extraordinary statement never seen before, called on National Assembly speaker Thandi Modise to hold high-level talks with Mogoeng about his political comments.
Since Mogoeng took office in 2009, his tenure has been marked by a decided move away from the principle of judges speaking through their judgments. He spoke more than his predecessors on a multitude of issues, including on his strong faith as a Christian.
His religion has now resulted in him coming under pressure from political parties and lobby groups to withdraw comments in which he disagreed with SA’s approach to Israel and Palestine and quoted the Bible in saying — according to the report in the Jerusalem Post, which hosted Mogoeng in a webinar — that those who curse Israel will be cursed themselves.
The latest controversy was fuelled by the government and the ANC officially viewing Israel as an apartheid state, and having taken severe decisions in terms of its international relations with Israel as a result of this. “The esteemed chief justice entered the arena of political commentary, which may make him vulnerable should he have to adjudicate a human rights matter in the future,” the ANC said.
The office of the chief justice did not want to comment on the ANC statement.
Africa4Palestine said in the wake of Mogoeng’s comments that it would lodge a complaint with the Judicial Service Commission (JSC). It was particularly concerned as there was a judgment pending at the apex court in the case between Cosatu and the SA Jewish Board of Deputies, in which the Israel-Palestine issue arises.
Sello Chiloane said the JSC secretariat had by Sunday afternoon not received complaints on Mogoeng’s comments.
Christopher Oxtoby, senior researcher at the University of Cape Town’s Democratic Governance and Rights Unit, said that while Mogoeng had made controversial comments over the years, those on Israel seem to go too far.
Oxtoby said there was a good reason to adhere to the principle that judges do not comment on things outside the scope of their job: the possible impact on the credibility of the institution.
In defence of Mogoeng, an argument could be made that he was not alive to the controversy of the intractable situation between Israel and Palestine.
Though people who supported Mogoeng in the latest saga argued that he was allowed to comment, as he had the right to freedom of speech and made it in his personal capacity, this is clearly not a free speech issue.
Oxtoby said Mogoeng was stepping into the terrain of international relations, which is the domain of the executive and not that of the judiciary, which has to be a neutral arbiter of disputes.
“You can’t switch on and off that chief justice role. Even if you’re commenting in private, you are still the chief justice.”
The Code of Judicial Conduct is clear on what judges may not do, including that a judge must not “unless it is necessary for the discharge of judicial office, become involved in political controversy or activity”.
It would be hard to argue that the comments were necessary in the discharge of judicial office and that they did not result in political controversy.
Oxtoby said he would be surprised if Mogoeng’s comments ended up as the subject of a judicial conduct tribunal, but his concern lay with the impact the comments could have on the credibility of the judiciary.
Oxtoby said his comments might tarnish his legacy.
Though it could be damaging for him personally, the more important issue is that Mogoeng has to think about the credibility of the judiciary before he speaks. If he thinks he can say what he wants to, the chief justice hands detractors of the judiciary the ammunition they need to attack the institution as a whole.