Behind the “victory” of the Courts

Recent judgements of the Constitutional Court and the High Court of Appeal, for instance the Scorpions and Similane decisions, are often hailed in the media as “court victories”. This implies that the government and the courts are engaged in some kind of warfare and that the courts emerged as the victors. Marinus Wiechers, former Unisa vice-chancellor and emeritus professor of public law, asks the question: “Is this really so?”

The ANC government and the judiciary, it seems, are at loggerheads. This explains president Zuma’s warning that the courts must not assume the functions of government.

Differences between courts and governments are not new. These occur in even the most advanced democracies. Reason for this is that modern constitutions contain provisions with definite policy implications.

The old paradigm that courts do not express themselves on matters of government policy is simply not true. Constitutions, such as ours, which guarantee human and socio-economic rights, will inevitably circumscribe government policies and behaviour. This may cause tensions when the courts are perceived to give judgements contrary to such policies and behaviour.

Governments angered by court decisions will frequently use the argument that the courts transgressed on the terrain of the executive and violated the fundamental separation-of-powers principle. What they fail to realise is that a democratic order functions as an organic whole and that the three branches of government interact with each other.

To assign the courts to a compartment apart from the legislature and executive whose actions they must oversee, would be to create a system that is undemocratic and bloodless.

Another argument even more frequently advanced is that since judges are not elected they might not go against the “will of the people”. This argument assumes that only an elected government has the right to interpret and give expression to the will of the people and as a result, courts are restricted in their scrutiny of government actions.

This is a crude populist argument and denies the true nature of democracy. Winning an election is not an open cheque to run the affairs of government disregarding legal and constitutional prescriptions. Truth is that a government becomes elected by the majority on the clear assumption that it will obey the laws and the constitution. That is what the “will of the people” really means.

It is exactly because judges are not popularly elected that they do not have to succumb to political pressures. In this respect, what is of utmost importance is that the process of selecting judges must be transparent and free of politics in order to assure that only persons with sufficient legal knowledge and the highest integrity are selected.

From history and also current developments in our country, it can be learned that a government which attempts to encroach upon the independence of the judiciary, usually resorts to the following:

• Kick out the recalcitrant judge or judges. Fortunately, such a course of action would be almost impossible under our Constitution since it requires a recommendation by the Judicial Service Commission and a resolution by a two-thirds majority of the members of the National Assembly.
• Establishing  a super-court, packed with government supporters to annul decisions of the Constitutional Court. This is what the Nationalist government tried in 1953 by instituting the so-called High Court of Parliament. Again, such a drastic move would mean a complete overhaul of our judicial system, and is highly improbable.
• In a more insidious manner, manipulating the judicial selection process in order to ensure that persons loyal to government are appointed as judges. Looking at the present composition of our Judicial Service Commission and the way in which it handled the Hlope debacle, fears in this respect are not far-fetched.
• Courts do not have a police force or other institutions to enforce their judgments. They also do not have the authority to decide which cases are to be brought before them. For this, courts have to rely on the police and the prosecuting authorities. If political control takes over in the police force and especially in the spheres of investigation and prosecution, the courts are left helpless and judicial independence can be severely compromised. Moreover, if secrecy laws prevent the courts from assessing vital evidence, they are left hamstrung. Again, present fears in this respect are not unfounded.
• The government may try to usurp the administration of justice and prescribe court actions in such a way that the judicial processes lose their independence and become state bureaucratised. A couple of years ago, an onslaught such as this was thwarted. However, this danger still lurks in the wings.
• As a seemingly innocuous move, instituting a monitoring body to analyse court decisions to investigate their socio-economic impact.  Surely, any person or academic institution or governmental body may scrutinise and even criticise court decisions, but if it is officially undertaken as a means to systematically discredit court judgements, such a move becomes very suspect. On the other hand, the government’s monitoring may run the risk of exposing to the legal fraternity the lack of constitutional understanding and biased thinking on the part of the government.

In the Mamabolo-judgement of the Constitutional Court (2001), Judge Kriegler said: “Having no constituency, no purse and no sword, the judiciary must rely on moral authority. Without such authority it cannot perform its vital function as interpreter of the Constitution, the arbiter in disputes between organs of state and, ultimately, as the watchdog over the Constitution and its Bill of Rights – even against the state.”

This is the crux of the matter. The court by sanctioning illegal and unconstitutional actions by government does not score a victory. If there is a winner, it is the laws of our country and in the first instance the supreme law, our Constitution.

Marinus Wiechers  - emeritus professor of public law, Unisa.