20/08/2008
Arthur Chaskalson

The independence of the judiciary is generally regarded as being an essential component of democratic government.   There should be no doubt about this.  It is spelt out in our Constitution, which gives effect to internationally accepted principles, which have been applied in judgments of the Constitutional Court.

The international standards, endorsed by resolutions of the General Assembly of the United Nations in 1985, include two principles relevant to our discussion this evening.  These two principles, which are entrenched and elaborated upon in our own Constitution, are:

The independence of the judiciary shall be guaranteed by the state and enshrined in the Constitution of the law of the country.  It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary.

The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influence, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.

There are also requirements that relate to what is described as institutional independence, which fall outside the scope of tonight’s discussion, but are relevant to proposed legislation affecting the structure and functioning of the courts which raised a number of contentious issues which have not yet been resolved.

Consistently with the General Assembly resolution, section 165 of our Constitution provides:

The judicial authority of the Republic vests in the Courts. The courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice. No person or organ of state may interfere with the functioning of the courts. 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. An order or decision issued by a court binds all persons to whom and organs of state to which it applies.

The Constitution is explicit on these issues.

First, the judicial authority vests in the courts.  Not in the government, not in any political party,  not in any trade union, not in any organ of civil society, and not in any disgruntled litigant.

Secondly, that authority must be exercised by the courts in accordance with the law.  Not in accordance with the dictates of the government or any political party, trade union, organ of civil society, or litigant.

Thirdly, the law must be applied impartially and without fear, favour or prejudice.  This means that the law must be applied equally, irrespective of who the litigants are; and when the law requires this to be done, courts must rule against the government and powerful figures in society.

Fourthly, there must be no attempt to interfere with the decision of a case.  This has long been considered one of the core principles of judicial independence.  The Constitutional Court had dealt with this on two occasions before the recent events that have given rise to the discussion tonight.  First, in 1998 and then again in 2002.  On both occasions the Court cited with approval a description of this core principle of judicial independence, given by Chief Justice Dickson, a highly respected former Chief Justice of Canada.

Historically, the generally accepted core of the principle of judicial independence has been the complete liberty of individual judges to hear and decide the cases that come before them:  no outsider - be it government, pressure group, individual or even another judge - should interfere in fact, or attempt to interfere, with the way in which a judge conducts his or her case and makes his or her decision.  This core continues to be central to the principle of judicial independence.

It is this core of judicial independence that is of particular relevance to our discussions tonight.  In the light of the clear wording of the Constitution, and these judgments of the Constitutional Court, no one should have been in any doubt about what the Constitution requires.  Yet judges of the Constitutional Court have been pilloried for reporting to the Judicial Service Commission a judge said to have attempted to interfere with the way judges of that court should make their decision in pending cases concerning the President of the African National Congress, and somehow that has been wrenched from its content and context to be made the basis of an allegation that the judges of the Constitutional Court are prejudiced against the ANC and its President. This, despite the fact that the public statement of the Constitutional Court judges stressed that there was no suggestion that any of the litigants - and that included the President of the ANC -was aware of or instigated this action.

Building on this allegation against the judges of the Constitutional Court there have been a series of attacks on the Court by some political activists, based on misinformation and a lack of understanding of the functioning of the courts, which in turn have raised national and international concern.  Public statements condemning these attacks have been made by many legal and political commentators, including the General Council of the Bar of South Africa, the Association of Law Societies of South Africa, the Southern African Law Deans Association, and the Council of the Society of Law Teachers of Southern Africa.

A more reasoned and temperate statement about these issues was made by the ANC’s Deputy President in the ANC’s weekly newsletter, ANC Today.  I take this to be the official position of the ANC on this issue to which I wish to respond.  As the Deputy President of the ANC is not here tonight I begin by setting out the relevant passages from his article in his own words.  After making the point that the ANC is entitled to show support for its leader, he goes on to say:

The ANC’s position on the case brought against Jacob Zuma is informed by the very same principles that underpin our democracy, and by the need to build a society founded on a democratic constitution, in which there is an independent, impartial and fair judiciary that safeguards the rights and interest of all people.  This remains an ongoing challenge. While we have put in place the fundamental laws and the necessary constitutional provisions for the existence of such a judicial system, there is much that still needs transformation.  Matters of composition, representivity, cultural bias, and language remain concerns.  As does the crucial question of improving access of the law for the poor and the vulnerable.  It is for these reasons that the ANC will consistently strive to uphold and defend the integrity and credibility of the judiciary and other institutions of state. Even if this means publicly raising concerns about members of such institutions who through their own actions undermine the integrity of the bodies in which they serve.  It is important to remember that that these institutions do not belong to the individuals who serve in them.  They belong to the people, and those who currently occupy important positions in such institutions cannot take lightly the responsibility that the people have placed on their shoulders.

There is for instance no contradiction between the need to safeguard the integrity of the Constitutional Court and the right of any individual or organization to criticize the manner in which the judges of the court conduct themselves.  It is important that while there is vibrant public debate on such matters, we should allow the  appropriate processes to run their course without any undue external influence.  The ANC maintains, for example, that the complaint laid by the Constitutional Court against Cape Judge president John Hlophe should be left to the Judicial Service Commission to deal with.

There are four critical propositions in this statement:

An affirmation of the importance of our democratic constitution and its commitment to an independent, impartial and fair judiciary that safeguards the rights and interests of all people.  I agree.  I welcome this statement and there is no need to dwell on this.

There is much in the judicial system that still needs transformation.  That may be so, but it has no relevance to the attacks upon the Constitutional Court.  None of the 11 Judges of the Constitutional Court held judicial office under apartheid.  All were appointed to the Bench after 1994 in accordance with recommendations of the Judicial Service Commission. Only 3 of the 23 members of the Commission are judges: the majority were nominated by parliament and the Executive.

Who are the Judges of the Constitutional Court?  8 of the 11 judges are black. Look into their backgrounds and you will see that all of them have strong credentials in the struggle against apartheid, in the struggle for human rights and freedom, and have a deep concern for the crucial question of improving access to the law for the poor and the vulnerable.  Those were factors that influenced the JSC in recommending that they be appointed to the office they now hold.  If you read their judgments you will see that they have remained true to these concerns.

Then there is a commitment that the ANC will strive to uphold and defend the integrity and credibility of the judiciary and other institutions of state. I welcome that commitment.  But it is meaningless unless it is implemented when it is necessary to do so.

The statement goes on to say that those who currently occupy important positions in our institutions cannot take lightly the responsibility that the people have placed on their shoulders.  I agree, and that goes as well for everyone in government and all who exercise political power.  Recklessly to undermine the standing and integrity of the highest court in the country for a short term political gain is a negation of that responsibility.

As far as the courts are concerned, the responsibility placed on the shoulders of the judges is defined in the Constitution.  It is to apply the law impartially, without fear, favour or prejudice.  I can say without any reservation that this is what the Constitutional Court has always done.  This does not mean that everyone must agree with the judgments that are given; it does mean, however, that its judgments bind all persons and organs of state to whom they apply.

Finally, it is said that any individual and organization has the right to criticize the manner in which judges of the Constitutional Court conduct themselves.  I agree that all judges, including judges of the Constitutional Court,  have a duty to conduct themselves in ways befitting their office, and that criticism of judges and their judgments is not in itself inconsistent with judicial independence.  However, criticism that amounts to an unwarranted attack upon the integrity of the court, made with the stridency and the intensity we have recently witnessed, is potentially harmful and destructive of our democracy.  It is an insidious process, which demeans the courts, deters persons of integrity and competence from making themselves available for judicial office, undermines one of the pillars of our democracy, and if allowed to continue, can lead to irreparable harm.

Finally, he stresses the importance of allowing appropriate processes to run their course without any undue external influence.  That holds good, not only for the proceedings against Judge President Hlophe, but for all cases, including the case against the President of the ANC.  The time has come to allow that process to run its course.