Govern­ment’s twisted logic on the ju­di­ciary

CityPress - - Voices -

The Coun­cil for the Ad­vance­ment of the SA Con­sti­tu­tion ex­ec­u­tive com­mit­tee com­prises Cathi Al­ber­tyn, Ge­off Budlen­der, Richard Cal­land, Jackie Du­gard, Ebrahim Fakir, Sello Hatang and Law­son Naidoo

Re­cent state­ments by the min­is­ter of jus­tice and cor­rec­tional ser­vices, Michael Ma­sutha, de­serve a calm, con­sid­ered but de­fi­ant re­sponse.

The min­is­ter as­serted that re­tired judges should not serve on the boards of non­govern­men­tal or­gan­i­sa­tions (NGOs) or as­so­ciate them­selves with such or­gan­i­sa­tions. We have it on good au­thor­ity that this highly re­gret­table po­si­tion was pre­sented to the chief jus­tice and his del­e­ga­tion of judges when they met Pres­i­dent Ja­cob Zuma and eight mem­bers of the Cabi­net on Au­gust 28.

On that oc­ca­sion, at least one mem­ber of Cabi­net as­serted that cer­tain NGOs were “en­e­mies of the state” – an ex­tra­or­di­nary, reck­less and highly of­fen­sive po­si­tion.

This marks a new low in gov­ern­ment’s in­ter­ac­tion with civil so­ci­ety.

Ma­sutha has now cho­sen to go on record in an in­ter­view last week with Maryna Lam­precht of Netwerk24, where he was quoted as say­ing: “It hasn’t been tested whether it is con­sti­tu­tional or not, but we are con­cerned. How fair is it when a judge steps on to a pub­lic plat­form like any other politi­cian and ex­presses opin­ions about bla­tantly po­lit­i­cal is­sues? Where do we draw the line?”

This is clearly an at­tack on the Coun­cil for the Ad­vance­ment of the SA Con­sti­tu­tion and other or­gan­i­sa­tions in the gov­er­nance and so­cial jus­tice sphere, and strikes at the heart of the free­doms en­shrined in the Con­sti­tu­tion. As such, it can­not go unan­swered.

The gov­ern­ment’s twisted logic ap­pears to be: the NGOs that are the sub­ject of its ire have lit­i­gated cases on rights pro­tected in the Bill of Rights and cases re­lat­ing to the gov­er­nance and in­de­pen­dence of con­sti­tu­tional in­sti­tu­tions, and won those cases against the gov­ern­ment. There­fore, they are “en­e­mies of the state”.

As a re­sult, any­one as­so­ci­ated with them is also an “en­emy of the state” and, since for­mer judges are re­cip­i­ents of state pen­sions, the state is fund­ing en­e­mies of the state, who must be pre­vented from hold­ing such po­si­tions. It ap­pears to be a thinly veiled at­tempt to in­tim­i­date re­tired judges from any as­so­ci­a­tion with such NGOs.

There are im­por­tant prin­ci­ples at stake that go against the essence of our democ­racy.

First and fore­most, South Africa’s Con­sti­tu­tion pro­tects free­dom of speech and free­dom of as­so­ci­a­tion. Such rights may only be lim­ited where the lim­i­ta­tion is rea­son­able and jus­ti­fi­able in an open and demo­cratic so­ci­ety based on hu­man dig­nity, equal­ity and free­dom.

Clearly, sit­ting judges must take care to not pro­nounce on is­sues, or as­so­ciate them­selves with or­gan­i­sa­tions or causes, in any way that might di­min­ish their in­de­pen­dence and im­par­tial­ity, or un­der­mine pub­lic con­fi­dence in the rule of law.

Once re­tired, how­ever, judges should be as free as the rest of us to en­joy the rights to free speech and the right to free­dom of as­so­ci­a­tion.

Se­condly, the fact that for­mer judges are re­cip­i­ents of pub­licly funded pen­sions is ir­rel­e­vant. They have earned those pen­sions in the course of ju­di­cial ser­vice (dur­ing which, as noted, they were sub­ject to ap­pro­pri­ate and nec­es­sary con­straints).

Thirdly, ju­di­cial of­fi­cers, once re­tired, have a re­spon­si­bil­ity to con­trib­ute to pub­lic dis­course about the rule of law, con­sti­tu­tional rights and is­sues of pol­icy that might ef­fect these im­por­tant pil­lars of democ­racy. They have sig­nif­i­cant ex­pe­ri­ence of the in­ter­sec­tion of law and pol­icy, and the op­er­a­tion of the rule of law. Their voices should carry weight and au­thor­ity, and de­serve to be lis­tened to and re­spected, not si­lenced.

Fourthly, it is im­por­tant to recog­nise the role of civil so­ci­ety or­gan­i­sa­tions in a free and open so­ci­ety with a ro­bust demo­cratic di­a­logue. South Africa is for­tu­nate to have a vig­or­ous tra­di­tion in this re­spect. NGOs have made an im­por­tant con­tri­bu­tion on a range of is­sues of pub­lic in­ter­est, over a long pe­riod, and they con­tinue to do so.

In­stead of al­low­ing it­self to suc­cumb to para­noia, the gov­ern­ment should wel­come any con­tri­bu­tion to de­vel­op­ing a cul­ture of hu­man rights and demo­cratic ac­count­abil­ity – prin­ci­ples of pro­gres­sive con­sti­tu­tion­al­ism which count­less peo­ple strug­gled to at­tain and to which the mem­bers of the coun­cil are com­mit­ted.

A crit­i­cal in­ter­ven­tion to strengthen and deepen our democ­racy is to broaden con­sti­tu­tional and hu­man rights aware­ness among the pop­u­la­tion. NGOs armed with the ex­per­tise and wis­dom of for­mer mem­bers of the ju­di­ciary seek to play a key role in these en­deav­ours.

Govern­ment should stop try­ing to in­tim­i­date such or­gan­i­sa­tions and any­one who serves them, in­clud­ing re­tired judges. It is not be­com­ing of a demo­crat­i­cally elected gov­ern­ment and threat­ens the hard-won in­ter­na­tional rep­u­ta­tion of South Africa as a coun­try com­mit­ted to con­sti­tu­tional democ­racy, hu­man rights and the rule of law.

Michael Ma­sutha

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