Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
17 October 2007

Are chattering classes scared of the people?

The London Guardian reports this morning about a country where the most popular political interviewer was fired from his job at a TV station because of pressure from the President of the country. Fort the liberals and the opposition this was a shocking event, but part of a pattern. They argue that the country’s

Democracy is increasingly at risk. Secret police files and wiretaps are being used to discredit or intimidate opponents. Public TV have been purged of pluralism. A new anti-corruption body enjoys draconian powers of investigation and arrest and is being wielded as a political club.

An editor even warns of a creeping coup d’etat.

The country is, of course, Poland, where Parliamentary elections will be held on Sunday. Poland is a member of the European Union, but the right wing government there has been accused of gross abuses of power.

Reading about Poland it is difficult not to see parallels with South Africa – but somehow I think critical South Africans would be more deeply depressed and fearful of the future than those liberals in Warsaw. The question is: why are we so hysterical about Thabo Mbeki when this kind of abuse of power that our President is now making himself guilty of, is rife in other respected democracies?Are we not perhaps all guilty of a kind of internalized racism which sees a President out of control and immediately think of darkest Africa and more pertinently – Zimbabwe? Instead of looking at the bright side we have all decided that we have reached the end of the democratic road.

Why don’t we focus on the free press – remember unlike Poland we still have our Debra Patta exposing the acting director of Public Prosecutions as either a complete nitwit or a shyster? Why don’t we point to our obviously Constitutional Court who might well overturn Vusi Pikoli’s removal from office if challenged there? Why don’t we celebrate the Treatment Action Campaign, our own homegrown civil society organization who has managed to change the government policies on ARV’s through brilliant political and legal activism.

If the TAC could force the government to change its policies on ARV’s, then surely if we organize and resist, if we are prepared to do the hard work, we will be able to overcome Mbeki – no matter how malicious or revengeful he becomes and no matter how mad his actions seem to become. 

Why then are we all so alarmed? Yes, it is of course deeply troubling if the President of a country starts believing he is the state and the law and starts acting accordingly. And yes we do have a special place in our hearts for our special constitution – the symbol of our new democracy. We therefore need to make a great noise when this symbol of our democracy is being abused.

But perhaps we are even more hysterical than we need to be because we – the elites, the chattering classes, the journalists – we do not trust the voters and the ordinary members of the ANC to be on our side. Don’t we worry at least a little that racial solidarity and struggle solidarity will keep the masses of our people safely at home when the time comes to protest against our government?

President Thabo Mbeki often points to the fact that the ANC keeps winning elections with a larger percentage of the vote (but he does not say that each election fewer voters actually vote for the ANC) to shut up his critics. We can do what we want because we have the people with us, is his attitude.

The problem is that people do not vote for President Mbeki because he illegally fires the National Director of Public Prosecutions or because he questions the link between HIV and AIDS. They vote for him because he is the leader of the ANC, which is the leader of the liberation movement.

All the hysteria around Thabo Mbeki is also, I would suggest, based at least partly on a fear by the chattering classes that the people are stupid and will wake up too late – yes, like in Zimbabwe – and that without the people on our side our beautiful constitution and our free press and our independent judiciary wont help us much.

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