On democracy and criticism

Is it acceptable in a constitutional democracy for a governing party to try and get judges appointed to the bench that share its “political objectives and ambitions”? If the governing party does so, is it justifiable to fear that the independence of the judiciary is under attack? If one criticises the maneuvers of the governing party to appoint more pliant judges that will rule in the government’s favour (even in cases where poor, marginalised and often black litigants approach the court for help), is one not being hysterical and perpetuating an Afro-pessimism born out of racism?

My answer to this perplexing set of questions is both yes and no.

I raise this question in response to some thought provoking comments made by Wits University law academic Kevin Malunga in The Citizen where he is quoted as saying.

There is nothing untoward about a new administration making political appointments that are in sync with its political objectives and ambitions. President (Barack) Obama did it in appointing for example Eric Holder as his Attorney-General and (British Prime Minister) Gordon Brown by appointing David Milliband as his new Foreign Secretary.

The media storm surrounding the appointment of new commissioners to the JSC is really a storm in a teacup. To throw mud at lawyers who are essentially doing their job is opportunistic and is doing even more damage to race relations in the legal fraternity. In fact, in their bid to do battle with (Cape Judge President) John Hlophe, the critics of these fine lawyers have resorted to what may be seen as being close to gutter racism and very poorly thought out rhetoric.

It might come as a surprise to some (well, more like a shock) to hear that after some reflection I think Mr Malunga has a point. In a constitutional democracy like ours judges are given enormous power to declare invalid legislation, the actions of members of the executive or other powerful institutions or individuals. The Constitution is written in general language and judges are required to interpret this text and apply it to facts and it would be daft to deny that the background, life experience and ideological commitment of judges play no role in their work.

The party in government would therefore not be doing its job if it did not try to influence the appointment of judges who – broadly speaking – shared its values, ideological commitments and vision for South Africa. When it does so, it does not necessarily mean that it is hell-bent on undermining the Constitution or the independent of the judiciary. Many of those who gnash their teeth and mutter darkly about the end of judicial independence because of efforts of the governing party to influence judicial appointments might well be animated by a kind of Afro-pessimism.

The underlying (but often unspoken) assumption of some of this criticism is that judges are only “independent” if they are opposed to the broad vision of the governing party. “Independent” then means: “not sympathetic to the ANC” and the government it leads. This view seems to me to be misguided.

I, for one, passionately believe in (and have written about) the appointment of judges who have internalised the values of the Constitution, have a keen appreciation of (and are concerned about) our social and economic context and the vast discrepancies between rich and poor in our society, and have an understanding of the urgent need for transformation as set out in our Constitution.

However, I depart from Mr Malunga in two critical respects.

First, I believe a constitutional democracy is best served when judges are appointed who will act “without fear, favour or prejudice”. There is a vast difference between the (political) appointment of a Foreigh Secretary, say, on the one hand, and the appointment of a judge on the other. Unlike cabinet ministers who are appointed to implement government policy and are expected to be loyal to the government and must abide by its decision come hell or highwater, judges are appointed to interpret and uphold the law regardless of who it favours.

In a constitutional democracy judges must be loyal to the Constitution and the values enshrined in it. If they ignore the Constitution and refuse to protect the rights of often marginalised and vulnerable individuals because this would require them to rule against the government of the day (who happens to have been elected into office for a period of five years), they are not doing their job.

When interpreting and enforcing the Constitution, the broader vision and ideological commitments of judges will of course play a role, but this does not mean they should not (at least partly) feel themselves constrained by the text of the Constitution, the precedent of the court they serve on and the requirement to justify their decisions with rational and well reasoned arguments. The rights contained in the Bill of Rights and the constitutional duties placed on the state and private parties will be meaningless if judges fail to interpret and apply the law in as fair and just way as they are capable of.

Second, given the fact that we live in a democracy, we all have the right to criticise the government of the day if they act in a way that we feel do not accord with our own broad vision and ideological commitments. This also apply to the moves by the government of the day to influence the appointment of judges. We are entitled to ask what such moves say about the values and ideological commitments of the governing party and to criticise it if we think it demonstrates a move in the wrong direction.

When the President thus appoints four new members of the JSC, there is nothing wrong in principle in criticising these appointments. Suggesting that such criticism is scandalous and necessarily based on “gutter racism” without engaging with the substantive arguments, seem rather anti-democratic to me. The question is surely not whether such appointees are good or bad lawyers (or good or bad human beings), but whether they share one’s vision for the country, which in my case is one of an open and democratic society based on human dignity, respect for diversity, non-racism and social and economic redress.

Governing parties do not always have the interest of the broader society at heart. They often have their own interests (and the interest of their donors and friends who benefit from their proximity to power) at heart – just ask any American who has lived for the previous eight years under George Bush and a Republican Congress.

I would argue that the proposed appointments to the JSC creates the impression that the ANC wishes to have judges appointed who will benefit a small elite who controls the government or are friendly with (or benefit from) the control exerted by this elite over the levers of power (and the fiscus). I might, of course, be wrong and it would be perfectly healthy (even wonderful) if those who disagree with me would formulate arguments to this effect.

However, suggesting that a debate about such issues is not allowed seems highly problematic as it aims to place debate on (and criticism of) one of the three branches of government beyond democratic contestation. In the absence of substantive arguments it would also be tempting to conclude that this undemocratic line of reasoning is based on an unwillingness to engage meaningfully on this important topic because the defenders of the decision has no substantive reasons to justify it or do not wish to come clean about their own ideological commitments and broader vision for our country.

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