Hands off the ju­di­ciary – Bi­zos

‘Un­just crit­i­cism lev­elled at con­sti­tu­tion and courts’

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VET­ERAN hu­man rights lawyer Ge­orge Bi­zos has fired a blunt warn­ing at the govern­ment not to un­der­mine the ju­di­ciary, say­ing this had been a trade­mark of the apartheid regime and its pre­de­ces­sors.

Re­ceiv­ing an hon­orary doc­tor­ate from the Univer­sity of Pre­to­ria yes­ter­day, Bi­zos said he wanted to weigh in on a pub­lic de­bate which had seen “un­fair, un­just, and un­in­formed crit­i­cism” lev­elled at the con­sti­tu­tion and the courts.

Bi­zos took is­sue with a re­cent re­mark by Pres­i­dent Ja­cob Zuma that the ex­ec­u­tive had the sole dis­cre­tion to de­cide govern­ment poli­cies.

Cit­ing fel­low lawyer Ge­off Budlen­der, he said: “The the­ory that the ex­ec­u­tive has a mo­nop­oly of wis­dom on pol­icy ques­tions, based on a demo­cratic man­date, strikes me as some­what re­mote from re­al­ity.”

Bi­zos said last week’s ap­peal court rul­ing in­val­i­dat­ing the ap­point­ment of Menzi Simelane as national pros­e­cu­tions chief “serves as a re­minder that the pres­i­dent is not above the law”.

Former pres­i­dent Nel­son Man­dela had shown no hes­i­ta­tion in abid­ing by a Con­sti­tu­tional Court rul­ing that over­turned a law giv­ing him the power to amend leg­is­la­tion by procla­ma­tion.

“The same day, Mr Man­dela rushed to the tele­vi­sion and ra­dio sta­tions of the SABC and de­clared… that he re­spected the de­ci­sion of the Con­sti­tu­tional Court and ap­pealed to all con­cerned to sim­i­larly ac­cept the court’s de­ci­sion.

“What a pity that some of Mr Man­dela’s suc­ces­sors have not fol­lowed his ex­am­ple.”

In an ac­cep­tance speech that read in part like a his­tory les­son, Bi­zos said ten­sion be­tween the ju­di­ciary and the ex­ec­u­tive went back to the 19th cen­tury.

He re­called that Paul Kruger, pres­i­dent of the old South African Repub­lic, had tried to do away with the test­ing right of courts, call­ing it “a prin­ci­ple of the devil”.

Like­wise, the apartheid regime had re­acted with con­tempt when the ap­pel­late divi­sion struck down leg­is­la­tion dis­en­fran­chis­ing coloured vot­ers and passed a law en­abling Par­lia­ment to re­view any such rul­ing.

“I hope that our cur­rent rul­ing party does not in­tend to fol­low ei­ther the regime’s ex­am­ple or that of Pres­i­dent Kruger, but I do have

some con­cerns,” Bi­zos said.

He added: “All power, whether of Par­lia­ment, the ex­ec­u­tive, or the courts, must be ex­er­cised in ac­cor­dance with the con­sti­tu­tion, which is the fi­nal word on the pow­ers and roles of each branch.

“Judges’ in­ter­pre­ta­tions sup­port the rule of law, not ex­ec­u­tive whims, and ju­di­cial re­view al­lows courts to de­clare law or con­duct that is in­con­sis­tent with the con­sti­tu­tion to be in­valid.”

Bi­zos said he was con­cerned at the cabi­net’s plans to as­sess the de­ci­sions of the Con­sti­tu­tional Court, and be­lieved it was un­nec­es­sary as judg­ments were sub­ject to free pub­lic de­bate.

“Any such body may be con­strued as a chal­lenge to the in­de­pen­dence of the ju­di­ciary… At this stage there are more ques­tions than an­swers.”

Most im­por­tant, for what pur­pose and to what end was this body to be es­tab­lished?

“There is no rea­son to es­tab­lish a new over­sight body not pro­vided for in the con­sti­tu­tion.” Bi­zos, who is among the au­thors of the con­sti­tu­tion, said the state now had a duty to ap­ply and re­spect it. – Sapa

Ge­orge Bi­zos

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