Constitutional Hill

January 12th, 2010:

Our own Sarah Palin?

Jan 12th, 2010
by Pierre De Vos.
113 comments

During the USA Presidential campaign, vice presidential candidate Sarah “Barracuda” Palin was rightly lambasted after giving a disastrous and laughable interview to Katie Couric. The most quoted section dealt with her lack of foreign policy experience and went like this:

Couric: You’ve cited Alaska’s proximity to Russia as part of your foreign policy experience. What did you mean by that?

Palin: That Alaska has a very narrow maritime border between a foreign country, Russia, and, on our other side, the land boundary that we have with Canada.

Couric: Well, explain to me why that enhances your foreign policy credentials.

Palin: Well, it certainly does, because our, our next-door neighbors are foreign countries, there in the state that I’m executive of.

Couric: Have you ever been involved in any negotiations, for example, with the Russians?

Palin: We have trade missions back and forth, we do. It’s very important when you consider even national security issues with Russia. As [Russian Prime Minister Vladimir] Putin rears his ugly head and comes into the air space of the United States, where do they go? It’s Alaska. It’s just right over the border. It is from Alaska that we send those out to make sure an eye is being kept on this very powerful nation, Russia, because they are right there, they are right next to our state.

Last night while watching the ETV interview with President Jacob Zuma, it suddenly dawned on me: maybe President Jacob Zuma  is our Sarah Palin! Like Palin, President Zuma has charisma, glamour and the common touch. Like Palin our President is much loved by his core supporters who believe that he is being victimized by snooty (or even racist) elites with no respect for traditional values. Like Palin, President Zuma can charm individuals when he meets them. Like Palin, Zuma has an interesting family life. And like Palin he looks completely and embarrassingly out of his depth when confronted by an intelligent and probing interviewer on TV.

Nikiwe Bikitsha did a brilliant job in the interview: she was respectful and courteous (as one should be when interviewing the country’s President to show respect for the office of the President) while asking probing and pointed questions and following up the many evasive and often misleading or plane wrong answers with pertinent follow up salvo’s – always humbly nodding along as the President basically admitted that he did not know much about what was going on in his government.  Our President kept on saying that discussions were continuing on many pivotal issues for South Africa (nationalization, schooling, Julius Malema, the NPA) but that nothing has been decided yet and that he personally had no views on any of these issues.

When asked about whether he would pardon Shaik, he wisely decided to skirt the question because the issue is so politically sensitive and because his advisors must have told him that he should not say anything about it until they have found a way of managing the inevitable fall-out of a possible pardon. Unfortunately, the President skirted the issue in such a ham-handed way that he created more trouble for himself.

“Why should I pardon him when he has not applied?,” he said. “I have nothing in front of me. If there was an application before me, you should ask the question. Why should I respond if I do not have the application before me?” Unfortunately the Presidency issued a statement on 19 October 2009 that contradicts this statement:

The Presidency received an application for pardon from Mr Shabir Shaik last year, on 24 April 2008. The application will be processed like all other applications

The President has therefore indeed received a pardon application and he therefore does have an application in front of him. He might not  have read the application himself, but he does have it on his desk and should know this as his office has confirmed this in an official press statement. Oops!

This is not a life and death issue and will not influence the legality of any pardon when it is eventually granted, but it was another embarrassing gaff on the part of the head of the South African executive which creates the impression that the President is either not aware of what is going on in his own office or that he is perfectly prepared to tell a whopper in order to avoid answering an awkward question.

But maybe there is a kinder explanation for the seeming Palinesque inability of President Zuma to answer any of the questions posed to him and his seeming lack on knowledge and grasp of the issues confronting South Africa. Maybe he avoided answering the questions because he is afraid.

In this regard the ghost of former President Thabo Mbeki seemed to hover over proceedings.

After all, Mbeki lost his job because he had opinions of his own and sometimes expressed them despite the fact that the ANC leadership had not “pronounced” on an issue. Watching President Zuma I got the palpable feeling that the power has shifted decisively from the union buildings to Luthuli House and that instead of constitutional government we now have a party political government.

Our Constitution is silent on the relationship between the executive and the political party in power. While it makes clear that the President is the head of the executive and that the executive governs the country (along with his cabinet members who are all accountable to Parliament), this power is a tenuous one – as Mbeki found out when he was fired.

Because the Constitution also allows the majority party in the National Assembly to “recall” the President by adopting a vote of no confidence against him, the President has no independent power base separate from the party who elected him. Given the fact that members of the National Assembly serve at the pleasure of the party and can be removed from their jobs at any time, the party leadership has a decisive say over members of Parliament, can therefore instruct them to take any action in Parliament and can thus also instruct them to fire the President. Through this threat of removal the party leadership can decide who serves as President and can also ensure that it tells the President how to serve.

President Zuma seems so scared of the party leadership – from Julius Malema down (or is it up?) – that he acts more like an automaton than like the leader of a modern constitutional democracy.

This latter explanation for the President’s embarrassing interview will mitigate against the view that President Zuma is no more than our own Sarah Palin. Let us hope the second explanation is true. Otherwise our President would not only be rather dim-witted (a bit like PW Botha who was definitely not the sharpest tool in the shed), he would also be out of his depth, ignorant and spineless. And if that is the case, we are all in big trouble – unless Kgalema Motlanthe or Gwede Mantashe is really governing the country from behind the scenes, in which case we might not be in as much trouble as it might have seemed from watching the interview.

JSC announcement: judicial vacancies

Jan 12th, 2010
by Pierre De Vos.
No comments yet

REPUBLIC OF SOUTH AFRICA

JUDICIAL SERVICE COMMISSION

MEDIA ANNOUNCEMENT

Judicial Vacancies

Meeting of the Judicial Service Commission 12-16 April 2010

The Judicial Service Commission invites nominations to fill vacancies as Judges in the following Courts:

(1)         North and South Gauteng High Court

One vacancy (Deputy Judge President)

(2)         North and South Gauteng High Court

Six vacancies

(3)         Limpopo High Court ( formerly Venda High Court)

One vacancy

(4)         KwaZulu–Natal High Court

One vacancy (Judge President)

Two vacancies (Judges)

(5)         Western Cape High Court

Three vacancies

(6)         Eastern Cape Division

One vacancy (Judge President)

Eastern Cape (Mthatha)

One vacancy

Eastern Cape (Grahamstown)

Three vacancies

Eastern Cape (Port Elizabeth)

One vacancy

(7)         North West High Court

One vacancy (Judge President)

(8)         Labour Appeal Court

Six vacancies

(9)         Labour Court

Three vacancies

(10)     Labour Appeal Court and Labour Court

One vacancy (Judge President)

Nominations must be accompanied by the nominee’s written consent and the standard questionnaire completed and signed by the nominee.

If any judicial vacancy arises between the date of this notice and the dates on which candidates are interviewed, the Judicial Service Commission may, after the interviews, fill such vacancy if it considers that suitable candidates are available.  This is to avoid the situation which has arisen in the past when, despite the availability of suitable candidates, no appointments could be made to fill vacancies which had occurred subsequent to the notice calling for nominations.  Consequently, in making nominations, regard should be had to the possibility that more judicial vacancies may occur than have been advertised.

I wish to emphasize the following points:

1.      Interviews with short-listed candidates will be conducted in public, i.e. members of the public and the media will be entitled to be present.

2.      It is open to persons or bodies nominating candidates to motivate their nominations by referring the Commission to the candidate’s qualifications and general fitness for appointment.

3.      The questionnaire must be accompanied by the standardised “clearance certificate” which the candidate is required to obtain from his/her professional body regarding the candidate’s professional status within that body, his or her suitability for appointment to the Bench and the nature of any disciplinary proceedings completed or pending in respect of the relevant candidate.

4.      Nominations must be addressed to and reach the Secretary of the Commission not later than Friday 05 February 2010 at 16h00.

The meeting of the Judicial Service Commission and the interviewing of shortlisted candidates has been scheduled to take place at the Twelve Apostles Hotel, Cape Town from 12-16 April 2010.

Applications must be addressed to:

Ms. Vuyelwa Masangwana

Constitutional Court

Private Bag X1

Constitution Hill

Braamfontein

Johannesburg

2017

Tel: (011) 359 7570/7537

Fax: (011) 403 5964

Fax2Email: 086 649 0944

____________________________________

S S Ngcobo

Chief Justice of South Africa

Chairperson: Judicial Service Commission

Same-sex marriage case gets under way in California

Jan 12th, 2010
by Pierre De Vos.
No comments yet

From Constitutional Law Prof Blog comes the following update on the same-sex marriage case in California:

Perry v. Schwarzenegger, “The Proposition 8 Trial”: A Primer

The well-publicized trial on the constitutionality of California’s Proposition 8 banning same-sex marriage begins today before Judge Vaughn Walker in the United States District Court for the Northern District of California (court website for case here). Recall that the California Supreme Court upheld Proposition 8 as we previously discussed here. Publicity of this federal trial has itself been an issue: SCOTUS has just stayed the order that the court’s trial proceedings were to be made available on You Tube.

Update: Live blogging of proceedings from anti-Prop 8 perspective here.

Although there are some statements in the press that this is the first same-sex marriage trial, that’s not exactly true.  After the Hawaii Supreme Court decision in Baehr v. Lewin, state court judge Kevin Chang held a trial on the issue of whether the state had compelling reasons to prohibit same-sex marriage.  In an extensive Order in late 1996, Judge Chang held that the state failed to satisfy its burden of showing compelling interests and that the law was therefore unconstitutional.  This order was later stayed because of developments in Hawaii.

But certainly this is the first federal trial.  Interestingly, counsel for plaintiffs in the case are outside the usual LGBT movement, but are Theodore Olsen and David Boies, the attorneys who represented Bush and Gore respectively in Bush v. Gore. Also interestingly, the state of California is not defending the lawsuit (Governor Schwarzenegger has taken no position and Attorney General Jerry Brown supports the plaintiffs).   California’s position is therefore being argued by intervenors including protectmarriage.com, who the trial judge described as the “proponents” of Proposition 8.  A New Yorker articlepublished today discusses the attorneys, the parties, and some of the arguments.

The best description of the issues to be determined at trial is in Judge Vaughn Walker’s from-the-bench order denying the motion for summary judgment filed by the proponents of Proposition 8 (transcript available here; order at pages 72- 91).

478px-Vaughn_WalkerJudge Walker (pictured), Chief Judge of the Northern District of California, states that he cannot determine that the due process claims are foreclosed because although the government interests that Proposition 8 fosters may be “akin to a legislative fact,” “embedded within such a legislative fact are certain assumptions about human behavior and relationships that have simply not been developed in the record.”

On the equal protection claim, Judge Walker ruled that there are genuine issues of fact concerning the level of scrutiny to be applied.  He ruled that a sex/gender discrimination was no foreclosed as a matter of law.  he also ruled that the level of scrutiny to be applied to sexual orientation was also not determined, holding that while the proponents seem to accept that gays and lesbians have faced discrimination and “contribute equally to society,” there remains material issues of fact on the Carolene products factors of “immutability and political power.”  Additionally, Walker decided that whether or not Proposition 8 was enacted with animus remained an issue requiring factual development and specifically rejected the proponents argument that a finding of animus would mean that “everyone who opposes same-sex marriage is a bigot.”

Regardless of the level of scrutiny – - – be it intermediate scrutiny based on gender/sex; some form of heightened scrutiny based on a Carolene Products analysis or on a Romer v. Evans analysis of animus; or lowest tier rational basis scrutiny – - – Judge Walker held that there remain material issues of fact both on  whether the actual state interests satisfy the appropriate standard and on whether those interests are actually served by the same-sex marriage ban as measured by the appropriate standard.

Thus, the trial will feature not only the plaintiffs, but a large number of experts. The trial is also expected to  highlight the role of organizations such as protectmarriage.org, one of the proponents, on the issue of animus in the Proposition 8 campaign.

RR