If judges really are conspiring, politicians should act

IN a very impressive show of leadership, the chief justice, Mogoeng Mogoeng, responded to accusations of bias against the judiciary with refreshing candour this week. It was a welcome break from the slander that has been directed at the judiciary, without substantial evidence.

The vilification strangely surfaces when the government or the governing party loses court battles. What is also of concern is that politicians in high office have not used available avenues to report any unlawful behaviour by judges. Mogoeng generously reminded them that: “In a case where a judge does overstep . . . the general public, litigants, aggrieved or interested parties should refer the matter to the judicial conduct committee of the Judicial Service Commission.” Needless to say, the ANC and the government are well represented in the JSC.

Minister of Police Nathi Nhleko said there were “interesting” elements in the judiciary who “meet with characters to produce certain judgments”. This is a worrying indictment and as a minister who swore his allegiance to the constitution, he ought to fulfil that oath by doing something about this. Instead, he “clarified” his statement: “I was just stating that all of us, we need to objectively behave in relation to situations as and when they crop up.” I don’t know what this means.

ANC secretary-general Gwede Mantashe expressed concern that “judgments of certain regions and judges are consistently against the state, which creates an impression of negative bias”. If this is the case, it is a devastating reflection on the judiciary, which we should not tolerate. What has he done about it?

Higher Education Minister Blade Nzimande said: “We must not define our constitutional state as standing in contradiction to majority rule.” I suspect most citizens would rather leave their fate in the hands of the law than majority rule. What the majority wants is not always founded on constitutional values. I am sure Nazi Germany thrived because of majority rule. If we were to have a referendum on the death penalty, the outcome may be contrary to our constitutional values. A referendum on our electoral system may also produce some stunning results. The courts are there to protect citizens, even from a dominant majority. It cannot be left up to politicians to determine the boundaries. There have been many instances when the courts have ruled in favour of the government or have referred matters to appropriate forums. The critics know this but they only harp on about the cases they have lost.

One person who is approaching this debate constructively is National Council of Provinces chairwoman Thandi Modise, who has asked the Constitutional Court to give the final word on how much power a court has to rule on decisions by presiding officers in parliament. I bet they will welcome a favourable outcome without questioning the judges!

Ten years ago I covered a judicial symposium at which Lindiwe Hendricks, a member of parliament’s justice committee, told judges they thought “they know it all”. Such infantile lashing out is not helpful. Does this mean judges’ decisions cannot be scrutinised, that the law cannot be debated and reformed, that it is perfect? Absolutely not. But the law still offers the best protection for our freedoms and responsibilities compared to a politician’s whims.

Mogoeng concluded his rare media conference this week by reminding us: “The rule of law is the cornerstone of our constitutional democracy . . . everybody is subject to and bound by the constitution and the law.” If the ANC and the government regret the laws passed, they know what to do and how to do it. Shouting, marching and making accusations without backing them up with persuasive, coherent and legally sound arguments is not constructive.

The vilification surfaces when the government or governing party loses court battles

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