Our laws have the last word

With the re­cent at­tacks on the ju­di­ciary from politi­cians, for­mer Con­sti­tu­tional Court Jus­tice Yvonne Mok­goro says the re­cent stand taken by the heads of our courts is com­mend­able, but it is up to all of us to en­sure our con­sti­tu­tional democ­racy is up­held

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The ba­sic prin­ci­ples that un­der­lie our con­sti­tu­tional or­der in­clude con­sti­tu­tion­al­ism, the sep­a­ra­tion of pow­ers with checks and bal­ances and the rule of law and ac­count­abil­ity. Some of these prin­ci­ples and val­ues are ex­pressly pro­vided for in the Con­sti­tu­tion while oth­ers are im­plicit. How­ever, whether ex­plicit or im­plicit, they are all jus­ti­cia­ble in that any law or con­duct in­con­sis­tent with them may be de­clared un­con­sti­tu­tional and in­valid. More par­tic­u­larly, they shape the ba­sic frame­work that de­fines our con­sti­tu­tional or­der and in­forms the in­ter­pre­ta­tion of the Con­sti­tu­tion and the law.

Whereas in any democ­racy the po­lit­i­cal party elected by the ma­jor­ity en­joys the right and au­thor­ity to con­sti­tute the gov­ern­ment of the day, when that democ­racy is a con­sti­tu­tional one like that de­fined by our writ­ten Con­sti­tu­tion, it cre­ates, among other things, the rules for gov­ern­ment and sets pro­ce­dural and sub­stan­tive lim­i­ta­tions on the ex­er­cise of gov­ern­men­tal power.

Our Con­sti­tu­tion is the supreme law of the land and bind­ing on all three arms of the state.

Need­less to say, all law and con­duct of any of the three arms of state that are in­con­sis­tent with the Con­sti­tu­tion are in­valid.

Fur­ther, any obli­ga­tion im­posed by the Con­sti­tu­tion on any arm of the state is peremp­tory and takes prece­dence over other in­ter­nal rules of the leg­is­la­ture, the ex­ec­u­tive and the ju­di­ciary. That obli­ga­tion must there­fore be ful­filled.

But what does con­sti­tu­tional supremacy mean if the Con­sti­tu­tion can­not be en­forced?

There­fore, the power to en­force the Con­sti­tu­tion is vested in the courts, which are in­de­pen­dent and sub­ject only to the law and the Con­sti­tu­tion.

When the courts ex­er­cise this ju­di­cial power, they must do so im­par­tially with­out fear, favour or prej­u­dice.

Again, there is the tricky as­pect of the coun­ter­ma­jori­tar­ian idea (not counter-rev­o­lu­tion­ary) where the re­cur­ring ques­tion is why un­elected judges should have the power to strike down laws and the con­duct of a ma­jor­ity-elected leg­is­la­ture and a rep­re­sen­ta­tive ex­ec­u­tive by declar­ing them in­valid.

The an­swer lies in the na­ture of a con­sti­tu­tional democ­racy.

While democ­racy in its most lit­eral sense might be un­der­stood as a “rule by the ma­jor­ity”, in a con­sti­tu­tional democ­racy the “rule by ma­jor­ity” must be ex­er­cised sub­ject to pre­de­ter­mined con­sti­tu­tional rules and pro­ce­dures.

An im­por­tant pro­vi­sion in our Con­sti­tu­tion is the con­sti­tu­tional rule that or­ders of court are bind­ing on all peo­ple and or­gans of state, in­clud­ing the leg­is­la­ture and the ex­ec­u­tive.

Whereas be­fore the adop­tion of our in­terim con­sti­tu­tion in 1994, Par­lia­ment was sov­er­eign and ex­er­cised leg­isla­tive supremacy, the ir­re­versible truth to­day is that, in­te­gral to our con­sti­tu­tional democ­racy, our leg­is­la­ture is no longer sov­er­eign – the Con­sti­tu­tion is.

But let’s not labour the point, be­cause although the sep­a­ra­tion of pow­ers with checks and bal­ances is also fun­da­men­tal in our Con­sti­tu­tion, what is also im­por­tant is that the three arms of the state must not pull in op­po­site di­rec­tions. Their roles are com­ple­men­tary rather than com­pet­i­tive. To­gether they have an obli­ga­tion to pro­tect the supremacy of the Con­sti­tu­tion. It is for this rea­son that all or­gans of state must help and pro­tect the courts and ju­di­ciary to en­sure their ef­fec­tive­ness, dig­nity, in­de­pen­dence, im­par­tial­ity and ac­ces­si­bil­ity.

Any law or con­duct that in­ter­feres with the func­tion­ing of the courts by any per­son or or­gan of state is a vi­o­la­tion of the Con­sti­tu­tion and may be de­clared in­valid and set aside, and the court must say so.

Al­ter­na­tively, the court may sus­pend the in­va­lid­ity for a lim­ited pe­riod while the leg­is­la­ture is given the op­por­tu­nity to cor­rect the in­va­lid­ity. An or­der of court that is just and eq­ui­table may en­sue. That is the power of ju­di­cial re­view as­signed to all higher courts in our Con­sti­tu­tion, and the courts must ex­er­cise that power.

There is no ques­tion that the ex­er­cise of the power of ju­di­cial re­view – where the laws of Par­lia­ment or con­duct of the ex­ec­u­tive are set aside – is po­ten­tially im­pos­ing and may even over­whelm.

In cru­cial times, it can de­ter­mine the des­tiny of a na­tion. In­deed, this power of the courts will add up to noth­ing and be im­po­tent if or­gans of state in par­tic­u­lar have the choice to dis­re­gard court or­ders.

The po­ten­tial for this no­tion is not far-fetched con­sid­er­ing the re­cent events in the mat­ter of the South­ern Africa Lit­i­ga­tion Cen­tre v Min­is­ter of Jus­tice and Con­sti­tu­tional De­vel­op­ment and Oth­ers (pop­u­larly known as the al-Bashir mat­ter).

I must ad­mit I am still reel­ing in shock at what ap­peared to have hap­pened – a bla­tant dis­re­gard for the or­der of court in the al-Bashir mat­ter, in­clud­ing the sub­se­quent re­sponses of lead­ing public fig­ures.

I was re­minded of the in­sight of the late Chief Jus­tice Is­mail Ma­homed when he stated in an ad­dress he gave to the In­ter­na­tional Com­mis­sion of Ju­rists in Cape Town on July 21 1998, that the ju­di­ciary does not have mas­sive phys­i­cal re­sources to ex­e­cute its or­ders and can rely only on the ex­ec­u­tive to do so.

Thus, he said, if court or­ders were dis­re­garded, “the courts could easily be re­duced to pa­per tigers with a fe­ro­cious ca­pac­ity to snarl and roar, but no teeth with which to bite and no sinews to ex­e­cute their judg­ments, which may then be mock­ingly re­duced to pieces of ster­ile schol­ar­ship, tooth­less wis­dom and pi­ous po­etry ... the po­ten­tially awe­some the­o­ret­i­cal power of the ju­di­ciary in the Con­sti­tu­tion could in those cir­cum­stances im­plode into noth­ing­ness.

“Judges, in such cir­cum­stances, would vis­i­bly be de­meaned. But much, much worse: hu­man rights could ir­re­vo­ca­bly be im­paired and civil­i­sa­tion it­self dan­ger­ously im­per­illed.”

In no cir­cum­stances have I ever found these of­ten­quoted, pow­er­ful words of Ma­homed more com­pelling. For me, that is ex­actly the cause for con­cern.

Be­sides, I too be­lieve that the fact the judges are not elected must be seen as an im­por­tant strength of our ju­di­cial sys­tem rather than its weak­ness. For me, it re­in­forces the im­par­tially in­ter­ven­tion­ist and pro­tec­tive role of the courts. Here there is no room for pop­ulism. Per­sonal views and po­si­tions are ir­rel­e­vant. That is the role man­dated to the ju­di­ciary by the Con­sti­tu­tion.

In many re­spects, that role is as­signed to the ju­di­ciary by the leg­is­la­ture, the au­thor­ity elected by the peo­ple. And, as our Con­sti­tu­tion has it, the leg­is­la­ture and ex­ec­u­tive must pro­tect this role and as­sist the courts to re­main in­de­pen­dent, im­par­tial, ac­ces­si­ble, ef­fec­tive and per­form their role and func­tion with the ut­most dig­nity. The obli­ga­tion to pro­tect the courts is as­signed to them in the Con­sti­tu­tion by the peo­ple they rep­re­sent.

To man­age the irony of the lack of phys­i­cal re­sources for the ef­fec­tive ex­e­cu­tion of its or­ders, the ju­di­ciary can only con­tinue to cul­ti­vate its sel­f­re­spect and le­git­i­macy in the minds of the so­ci­ety it serves and of the lit­i­gants who ap­pear be­fore it.

This must be based on the ju­di­ciary’s fierce in­de­pen­dence and awe-in­spir­ing in­tegrity at in­di­vid­ual and in­sti­tu­tional level. It is on this in­de­pen­dence and in­tegrity that the le­git­i­macy and es­teem of the courts will thrive, as long as ju­di­cial of­fi­cers con­tinue to en­sure that the power they ex­er­cise is matched by the depth of re­spon­si­bil­ity they have to ful­fil their con­sti­tu­tional man­date, and to do so hon­ourably, with­out fear, favour or prej­u­dice. That, too, is a re­spon­si­bil­ity man­dated by the Con­sti­tu­tion.

It is im­por­tant, how­ever, for judges to be cog­nisant of the no­tion that when lit­i­gants ap­pear be­fore the courts, they are en­ti­tled and will ex­pect an out­come of a case in their favour. If the de­ci­sion goes the other way, there will cer­tainly be dis­ap­point­ments. Where the out­come is about strik­ing down and in­val­i­dat­ing laws or the con­duct of the ex­ec­u­tive, con­tro­versy and/or vig­or­ous de­bate may en­sue from time to time.

Be­sides, ro­bust and con­struc­tive de­bate and free ex­pres­sion of views or opin­ion are in­te­gral to a vi­brant democ­racy and must be wel­comed.

How­ever, what places the le­git­i­macy and in­tegrity of the courts at risk are the reck­less re­sponses of lit­i­gants amount­ing to un­sub­stan­tial at­tacks on de­ci­sions of the courts when­ever they are dis­sat­is­fied with the out­come of their cases. And it makes it more dan­ger­ous when the lit­i­gants are in­flu­en­tial public of­fi­cials.

In that case, it easily sends the wrong mes­sage to an al­ready rest­less public that if the out­come of a court case is not favourable, a lit­i­gant is en­ti­tled to pub­licly “at­tack” the ju­di­cial of­fi­cer and may even dis­re­gard court or­ders. This is a cul­ture of dis­re­spect for courts and the ju­di­ciary that we can least af­ford.

How­ever, judges can take so­lace in the fact that their de­ci­sions are the out­come of a fair ad­ju­di­ca­tion process where rel­e­vant is­sues are raised and sub­mis­sions made in an open court, and each party has a fair op­por­tu­nity to make com­pelling ar­gu­ments to sup­port its con­tentions.

It is then the re­spon­si­bil­ity of the ju­di­cial of­fi­cer to en­sure that the or­ders are just and eq­ui­table. This must take into ac­count the facts of the case in the con­text of sur­round­ing cir­cum­stances, the is­sues raised in ar­gu­ment, the con­tentions sub­mit­ted, the re­search anal­y­sis and the in­ter­pre­ta­tion of the ap­pli­ca­ble law and the Con­sti­tu­tion, us­ing clas­si­cal ju­di­cial ap­proaches and ra­tio­nal ob­jec­tive stan­dards of as­sess­ing avail­able ev­i­dence.

It is im­por­tant for judges to recog­nise and iden­tify the lim­its of their ju­di­cial pow­ers in the de­ci­sions they ar­rive at and the or­ders they make.

Judges are hu­man and not in­fal­li­ble. How­ever, er­rors in law and fact can be ap­pealed to the high­est court through the hi­er­ar­chy of the courts. This is also the case when judges have over­reached them­selves. That is the dis­ci­pline the rule of law re­quires of each lit­i­gant who comes be­fore the courts who is ag­grieved by court de­ci­sions.

Fur­ther, judg­ments are handed down in open court in the pres­ence of lit­i­gants and/or their rep­re­sen­ta­tives. They are pre­sented with a copy of the judg­ment to study and de­ter­mine whether to lodge an ap­peal in a stip­u­lated time. A lit­i­gant will know if even an iota of ir­rel­e­vant, ex­tra­ne­ous, un­due and un­be­com­ing in­flu­ence has af­fected the de­ci­sion of the court and/or the logic of the court’s rea­son­ing does not add up.

Any un­be­com­ing con­duct iden­ti­fied and af­fect­ing the in­tegrity of the judge and amount­ing to mis­con­duct in terms of the ju­di­cial oath of of­fice and/or un­der the judges’ code of con­duct may be a ba­sis for lodg­ing a com­plaint against the judge with the Ju­di­cial Ser­vice Com­mis­sion ( JSC). The process be­fore the JSC may re­sult in the im­peach­ment of that ju­di­cial of­fi­cer. This dis­ci­plined route is equally avail­able to all lit­i­gants, in­clud­ing or­gans of state and public of­fi­cials.

The JSC con­sti­tutes a cross sec­tion of rep­re­sen­ta­tives, in­clud­ing mem­bers of the ex­ec­u­tive and the leg­is­la­ture. Again, the avail­abil­ity of these pro­cesses leaves no room for any form of public at­tack on a ju­di­cial of­fi­cer and/or the ju­di­ciary.

The ju­di­ciary has the first re­spon­si­bil­ity to cul­ti­vate public re­spect, trust, in­tegrity and le­git­i­macy based on the way it per­forms its con­sti­tu­tional man­date.

But I have no doubt that or­gans of state and public in­sti­tu­tions, or bod­ies who have an in­ter­est if the in­de­pen­dence, in­tegrity and le­git­i­macy of the ju­di­ciary are placed at risk – to var­i­ous de­grees and in var­i­ous ways – also have a re­spon­si­bil­ity to pro­tect the courts. They have an obli­ga­tion to speak up in de­fence of the ju­di­ciary, the bul­wark of our con­sti­tu­tional democ­racy.

Although the show of lead­er­ship demon­strated by the heads of the courts led by Chief Jus­tice Mo­go­eng Mo­go­eng af­ter the re­cent spate of at­tacks on the ju­di­ciary is com­mend­able and was ap­pro­pri­ate in the cir­cum­stances, judges do not have to go that far to de­fend the ju­di­ciary if oth­ers with a con­sti­tu­tional re­spon­si­bil­ity step up in de­fence of the ju­di­ciary.

No­table, how­ever, are the ef­forts of the Public Pro­tec­tor, the media and oth­ers in that re­gard.

More specif­i­cally, the chap­ter 9 in­sti­tu­tions, which are in­de­pen­dent and, like the courts, are sub­ject only to the Con­sti­tu­tion and the law, have the pri­mary role of sup­port­ing con­sti­tu­tional democ­racy. They have an im­por­tant in­ter­est in the pro­tec­tion of the courts. Surely, other public in­sti­tu­tions and bod­ies who have a stake in the strength of our courts to per­form ef­fec­tively also have an im­por­tant role.

The or­gan­ised le­gal pro­fes­sion is in­te­gral to the sys­tem of the ad­min­is­tra­tion of jus­tice. In view of its close as­so­ci­a­tion with the courts and the di­rect re­liance it places in its work on the in­de­pen­dence and in­tegrity of judges, it should be the first line of de­fence of the courts when their in­tegrity is in jeop­ardy.

Sim­i­larly academia, in par­tic­u­lar le­gal academia, is an im­por­tant role player. Only last week, the So­ci­ety of Law Teach­ers had its gen­eral meet­ing and it would be in­ter­est­ing to learn of its re­sponse to these re­cent de­vel­op­ments.

The role of a vi­brant in­de­pen­dent media in iden­ti­fy­ing and in­ves­ti­gat­ing the most per­ti­nent is­sues for public at­ten­tion and de­bate and pro­mot­ing public di­a­logue can­not be ex­ag­ger­ated and should not lose its lus­tre.

My gen­er­a­tion can re­mem­ber the game-chang­ing role that hu­man rights and civil so­ci­ety or­gan­i­sa­tions played in the dark days of apartheid.

And we know only too well how the need for trans­for­ma­tion in gov­ern­ment, and the public ser­vice in par­tic­u­lar, al­most de­pleted the re­source­ful­ness of civil so­ci­ety.

Although most of these non­govern­men­tal bod­ies are lim­ited in mem­ber­ship and re­stricted in their fund­ing, which af­fects their im­pact, the role they still play – although this has slightly shifted – is as crit­i­cal to­day as it was in the past. I be­lieve they have a se­ri­ous in­ter­est if the in­de­pen­dence of the courts is not pro­tected.

The long and short of it is – whether it’s the state or the public – we all have an in­ter­est in the in­de­pen­dence, in­tegrity and le­git­i­macy of our courts and must pro­tect them and de­sist from cre­at­ing cir­cum­stances that weaken them and place their au­thor­ity in jeop­ardy.

If there is a point of so­cial co­he­sion that has the great­est po­ten­tial for in­sti­tu­tion-build­ing with a view to na­tion-build­ing, it is the re­spect we must show for our Con­sti­tu­tion as the foun­da­tion of our con­sti­tu­tional democ­racy, in which the role of our courts is cen­tral.

This is an edited ex­tract of a speech de­liv­ered by Mok­goro at the third an­nual Kader As­mal Hu­man Rights

Lec­ture held at Wits Univer­sity on Tues­day


LE­GAL HOT POTATO Su­dan’s pres­i­dent, Omar al-Bashir (cen­tre), with Pres­i­dent Ja­cob Zuma at the AU sum­mit in Joburg last month. Al-Bashir sneaked out of SA on the last day of the sum­mit even though the high court ruled he should not be al­lowed to leave the coun­try

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