The judiciary and its judges are the flaming stars in our constitutional firmament and deserve our unqualified support, says George Devenish.
Pretoria - An unprecedented series of gratuitous verbal attacks on the judiciary by prominent members of the executive has precipitated a meeting, attended by senior members of the judiciary, chaired by Chief Justice Mogoeng Mogoeng.
At this gathering of the judges, the chief justice was mandated to arrange a meeting with President Jacob Zuma to discuss the tense relations between the two branches of government. This meeting is to take place as soon as the president returns from overseas.
This unprecedented state of affairs in the strained relationship between the two branches of government must be understood against the background of our liberal democratic Constitution, premised on the doctrine of separation of powers and the independence of the judiciary.
South Africa has a constitutional democracy and not a pure majoritarian democracy that would be based on parliamentary sovereignty.
In the latter, there are far fewer constraints on the exercise of power by the executive, having majority electoral support. By contrast, in a constitutional democracy, the executive is legally obliged to exercise its power in terms of the constraints imposed by the Constitution and the provisions of the Bill of Rights. The latter provides cogent protection for minority interests.
In a catena (sequence) of recent judgments, the high courts have given courageous judgments against the executive to uphold the obligations imposed by the Constitution on the executive.
This has intensely infuriated members of the governing party, resulting in vicious and unbridled verbal attacks on the judiciary that could affect its independence, which is described by an erstwhile Canadian chief justice as “the complete liberty of the individual judges to hear and determine cases before them independent of, and free from, external influences or the influence of government, pressure groups, individuals or even other judges”.
In a constitutional democracy, the executive is obliged to carry out court orders, even those that are unpalatable to it, such as that relating to President Omar al-Bashir.
When the executive of a state starts to ignore court orders it undermines the Constitution, paving the way for the emergence of a failed state, as has occurred in Zimbabwe.
Thus it is submitted that the present state of affairs constitutes a constitutional crisis, since neither branch of government is likely to back down meaningfully.
For the judiciary, what is at stake is its independence and integrity.
The executive and its members, who have been voicing righteous indignation in no uncertain terms, are very unlikely to eat humble pie or even to seek a compromise, which would be perceived by the electorate as in some way conceding that it has exceeded its powers.
Although some face-saving statement is likely to flow from the Mogoeng-Zuma meeting, the existing tension between the two branches will not, it is submitted, be dissipated.
Indeed in a constitutional democracy, be it the United States or South Africa, where the courts have a testing right flowing from judicial review, such tension is part of the anatomy of the body politic and liberal democracy.
Although such tension is always potentially present, it needs to be managed with adroitness and sensitivity.
The present constitutional crisis in the relationship between the two branches has occurred because the ANC executive has not managed the situation and allowed senior members to make unbridled attacks on the judiciary, impugning its integrity and undermining its independence.
The independence of the judiciary is indeed a cornerstone of our constitutional democracy, which is enshrined in sections 165 (3) and (4) respectively of the Constitution which states that: No person or organ of state may interfere with the functioning of the courts; and organs of state, through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts.
It is submitted that the orchestrated attacks made by senior members of the executive, such as that by Dr Blade Nzimande, who declared that the judiciary was using double standards, are indeed a violation of these two provisions constituting “interference” with the functioning of the courts and a failure to protect “the independence, impartiality, dignity, accessibility and effectiveness of the courts”.
Politicians, and the public at large, have a right to criticise the judgments of the courts in a reasonable and restrained manner, but most certainly not in a manner that impugns the integrity of the courts and impacts negatively on the independence of the judiciary.
It appears then that the assault on the courts is a strategy to intimidate judges to give judgments that favour the executive. There is fortunately cogent evidence that in this regard the courts and their judges will not “play ball” and will continue to deliver judgments without “fear or favour” and in so doing “uphold and protect the Constitution” as required by section 178(8) of the Constitution.
However, ordinary citizens, civil society and the electorate have an important obligation in this regard to support the judiciary in maintaining the independence and integrity of the judges and the courts.
This needs to be declared unequivocally to the effect that politicians and members of the executive do not have the right to attempt to intimidate the judges in order to obtain favourable pro- executive judgments.
In our constitutional firmament, the judiciary and its judges are the flaming stars. This is an aspect of our constitutional dispensation that is working, and working well. They deserve our unqualified support.
South Africans, having crafted an exemplary Constitution involving an erudite and bold judiciary, need to protect it from the predations of those in the body politic who would wish to undermine and ridicule it in the pursuit of unrestrained executive power.
* George Devenish is an Emeritus Professor at the University of KwaZulu-Natal and one of the scholars who assisted in drafting the Interim Constitution in 1993.
** The views expressed here are not necessarily those of Independent Media.
Pretoria News