Why the personal views of judges should be openly expressed
Opinion / 29 December 2019, 2:52pm / Dennis Pather
As we prepare to greet the new year, what better time for a spirited debate about our learned friends of the judiciary.
Do you think it’s proper for our judges to express their personal views on contentious socio-political issues on public platforms?
Or should they maintain a silence while on the bench for fear of compromising the impartiality of their office?
And, while on the subject, should they keep their personal views to themselves even after they have retired?
The issue came to the fore recently when the policy fellow of Institute of Race Relations (IRR), John Kane-Berman cautioned the Chief Justice Mogoeng Mogoeng against expressing his views on contentious issues like transformation, colonialism and land reform.
“The question is whether the chief justice should permit himself the luxury of giving vent in a public lecture to powerful views on issues that may come before him as a judge.
“He warned in his Nelson Mandela lecture (in November) about the importance of making sure ‘that we don’t have a compromised judiciary’. Is he heeding his own warning?” asked Kane-Berman.
Being a wise and experienced jurist, the chief justice would probably have accepted Kane-Berman’s word of caution quite graciously.
Let’s be frank. When Chief Justice Mogoeng was appointed, many doubting Thomases were apprehensive, fearing he was just another Jacob Zuma deployee. But he proved us all wrong.
Once settled into his position, he has not hesitated to speak out boldly on burning issues affecting our society.
Remember his Mandela lecture in Soweto when he called for unity in the fight against inequality and said: “It really is a shame that 25 years down the line, we still have so many of our people suffering as they do.”
Some critics believe his outspoken views could seriously compromise the judiciary’s impartiality.
Others, on the other hand, argue the IRR’s views on the judiciary are outdated and belong to the days when judges were expected to be indifferent.
What’s also a matter of deep concern to me are the number if judges who, on retirement, go into a hibernation of silence.
A notable exception recently has been the public role played by retired KZN judge, Thumba Pillay who has spoken out on issues of corruption, maladministration, crime, the wealth gap and state capture - without being politically partisan.
So too was retired Constitutional Court judge, Johann Kriegler who played an active role in public affairs both within the country and internationally.
Judges were not born and raised in a political or ideological vacuum. They went through life experiences that played defining roles in molding their thinking, attitudes, prejudices as well as their judgements.
Their views need to be heard in a country suffering from a death of strong leadership.