Review puts top courts on trial

INLSA

DEFENDING THE LAW: The harsh criticisms of the judiciary and the courts by top government officials have not been retracted. Picture: Antoine de Ras

CARMEL RICKARD

EXCUSE me for asking, but what on earth is the point of the government’s proposed review of SA’s two highest courts? As the terms of reference now stand, they achieve very little for any constituency.

For the ANC gripers there’s precious little that can be gained from the investigation by way of political weaponry with which to clout the two courts; for the public – who are footing what will be a considerable bill – there’s equally precious little new to be gained from the genuine information likely to come out of such an inquiry.

When the terms of reference were finally disclosed earlier this week they were so anodyne as to make law-watchers wonder if they had been given the wrong set of documents.

Where was the fire and brimstone we had expected after the dragon-belching from senior government officials effectively threatening to put the courts in their place?

Instead we found a call for tenders to conduct an impossible inquiry. Impossible because of the size of the operation.

The Supreme Court of Appeal was added to the brief, apparently at the last moment, bringing the number of decisions which “investigators” would have to consider to between 5 000 and 6 000 for the period under review.

Bear in mind, too, that the appeal court hears matters from across the full spectrum of law, so any tendering institution would have to be competent to assess that court’s wide contribution during the period since 1994. Could anyone do it apart from a full university law faculty, with no other work to distract them?

The specific issues flagged for investigation are just as peculiar. When it comes to the question of costs for litigants who approach the Constitutional Court, surely everyone – even the executive – knows that a poor person with a good set of socio-economic facts has a far better chance of getting to the highest court than anyone else. Access to the courts on disputes involving socio-economic rights get priority funding by NGOs and others.

Let’s assume that whoever wins the contract undertakes a genuine bona fide examination of the issues listed in the terms of reference.

At least three findings can be predicted.

First, NGOs will emerge as heroes for the litigation that they have been conducting to widen the rights of poor communities.

Second, the courts themselves must emerge as having made a substantial contribution to these rights.

And third, the implementation of the courts’ decisions by national and local legislatures and officials has been, at best patchy: some departments try to follow the courts’ guidelines closely, others pay lip service, if that.

If the final report does not reflect this state of affairs; if it decides that the courts have hindered the realisation of rights, for example, there will be an almighty outcry.

The central questions posed by the terms of reference are being answered daily in the academic journals devoted to the subject of reviewing decisions of the courts and their impact. Should the answers reached by the proposed investigation be at odds with this plethora of research, the inquiry would have no credibility.

One of the strangest things about the proposed inquiry is that it is intended to find out whether the courts are supporting the extension of rights to the poorest. But if you consider the work of the Constitutional Court, for example, the extension of rights to the poor by this court has been in the face of strong government opposition in court.

Take the two matters often cited to show how the courts have established key principles for developing constitutional rights, namely the Grootboom case, involving housing rights, and the Treatment Action Campaign case, brought to extend the provision of antiretrovirals to the most vulnerable in society.

In both matters the authorities involved fought with all their strength to prevent the court taking the decisions they did, insisting that the court should not heed the poor and vulnerable litigants. And in both, despite this opposition, the court resolutely gave effect to the rights in the constitution.

Against this kind of background a genuinely open-minded and honest investigation would surely have to find that the lack, if there is one, does not lie with the courts.

Perhaps I’m overly suspicious, but I can’t really imagine the inquiry is for dispassionate reasons, to permit a cool, academic investigation. The vitriol that accompanied first mention of a review should have alarmed everyone. That the vitriol is now missing makes me wonder about an explanation.

The best case scenario seems to be this: the enormous outcry over what appeared to be an egregious infringement of judicial independence and the separation of powers caused a back-down. At least for the moment. And led to a decision to convert what started out as a witch-hunt into something more acceptable to most observers.

But there’s also the possibility that this is part of a softening-up exercise. The harsh criticisms of the judiciary and the courts by top government officials have not been retracted. Those will be the words that the electorate remember, not the dispassionate phrases of the terms of reference.

And in the wake of those attacks on the courts comes this inquiry, apparently a follow-up to that official criticism. For consumption by an unsophisticated public the message conveyed is that if the government is affronted by the courts it takes action.

When I tend towards accepting this more gloomy interpretation I remember the fate of the Southern African Development Community tribunal. Some years into its existence leaders of SADC countries decided the court should be subjected to a “review”. At the time there were many raised eyebrows about the implications of subjecting a court to such an exercise. But in the end the tribunal passed the test and was cleared to go ahead.

I would argue that the exercise weakened the position of the tribunal and showed it was not inviolable: not long afterwards Zimbabwe’s President Robert Mugabe was able to persuade a majority of his fellow African heads of state, in effect, to close the court. What had been a showpiece for the region now lies in tatters, with litigation against the SADC countries pending by court officials who summarily lost their jobs.

At this stage it would be difficult to argue that our two top courts face the same fate, but weakening the position of the judiciary is a dangerous game whose outcome cannot be predicted.

There are observers who take a far more positive view of the whole exercise, who say that the inquiry with its terms of reference, now cleansed of the initial anti-constitutional language and intent, could lead to a good thing. An honest assessment, they believe, will find the courts responsible for enormous development, and if the inquiry results in useful suggestions for how to improve matters even further, then that is a good thing too.

“No one could possibly say that the courts show a trend that is anti-constitutional,” one senior jurist remarked to me confidently. “No death penalty; no corporal punishment; rights for the homeless extended. An honest assessment would have to reflect these positive developments.”

My more cautious approach reflects the alarm caused by those first shock suggestions that the court would have to account for itself to a reviewing body. At the time I thought it was rather like my heart announcing that it would be reviewing the functioning of my lungs; or the kidneys deciding on a closer examination of whether the spleen was doing its job properly. It seemed unthinkable, inappropriate.

If I am wrong to continue feeling so suspicious then I have to put it down to history. Government officials from the top down have for so long rubbished the courts and the judiciary that it is difficult to take an exercise such as this at face value.

A lot of bridge-building would have to be done to persuade many people, alarmed at the official rhetoric, that the government should be trusted when it comes to the courts.

Public concern about the true intention behind this plan of the executive reflects something else: that the courts have come to be seen as a serious counterweight to what are often corrupt, anti-democratic and bullying decisions of top officialdom.

We react as strongly as we do when the courts are attacked because we believe they provide the strongest defence of the constitution and its promised rights. That in itself – the growing public confidence in the judiciary as an institution determined to protect the constitution – says a great deal about the success achieved by the courts in their work since 1994.