Government’s twisted logic on the judiciary
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.