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
23 February 2007

Are there limits to criticism of politicians?

Aubrey Matshiqi has a thoughtful piece in this morning’s Business Day on limits to criticism of President Thabo Mbeki (he says the only limit is that one should not intentionally tell untruths about the man). He reminds us that Mbeki himself has said when asked about protesters burning T-shirts with his face on, that we live in a free country and that those protesters were exercising their democratic right.

In the same newspaper there is a report about Cabinet taking umbrage at the “personal” nature of the comments about the health of Minister Manto TshabalalaMsimang. In line with an article in the Cape Times on Wednesday by her spokesperson, the Cabinet seems to suggest that it is off limits to speculate on her health. Without conclusive proof of her bad health we must shut up.

But in a democracy the health of the Health Minister – especially one who touts the use of garlic, olive oil and the African potato – is of intense interest to us all and newspapers have a duty to inform us about it. If one is a public servant (and that is what Ministers are supposed to be – servants of the people), one unfortunately will be scrutinised. To complain about that scrutiny as the Cabinet does is to complain about one of the essential and important elements of a democracy.

Of course, one would hope that speculation and opinion would be within the boundaries of basic decency. One would not want to treat the Minister with the same contempt and even hatred that she had treated her enemies in the past. So when the DA spokesperson said that the Minister should be fired before she died in office it was perhaps too insensitive.

Nevertheless, we have a right and the newspapers have a duty to inform us about the Health Minister’s health. The Minister or her officials act in a profoundly undemocratic way if they suggest newspapers should not speculate on her health and must believe the completely implausible denials of bad health.

My motto is: as soon as a goverment spokesperson denies something, one should become suspicious because when they start denying something there is probably some truth to the matter.

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